Jones v. United States

PETITIONER:Jones
RESPONDENT:United States
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 331
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 357 US 493 (1958)
ARGUED: Apr 07, 1958 / Apr 08, 1958
DECIDED: Jun 30, 1958

Facts of the case

Question

  • Oral Argument – April 08, 1958
  • Audio Transcription for Oral Argument – April 08, 1958 in Jones v. United States

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

    Earl Warren:

    Number 331, Roy Jones versus United States of America.

    Mr. Asinof.

    Wesley R. Asinof:

    Mr. Chief Justice, may it please the Court.

    The question involved in this case is on the question of the validity of a search of a private dwelling house and the seizure of contraband articles without a search warrant, the search having been made during the night season and based upon probable cause in a case wherein the federal agents had ample opportunity to procure a valid search warrant.

    The case arose in the District Court for the Northern District of Georgia and from the facts found by the trial judge after hearing a motion to suppress the evidence in the case of certain articles that were found inside the house.

    The trial judge found that there was ample opportunity to procure a search warrant, there being five officers in approximately two doors.

    The evidence disclosed before the trial judge that the agents of the Government had had the dwelling house under observation for approximately three days, that they had probable cause for believing that a — an illicit distillery was in operation inside the house.

    Without going into the question of the facts that gave them — that gave rise to the probable cause, we will concede and it concede in the trial court and in the Court of Appeals that there was probable cause.

    On the afternoon of —

    Felix Frankfurter:

    Probable cause for — for what?

    Wesley R. Asinof:

    For the procuring of a warrant.

    Felix Frankfurter:

    For — to have gotten a warrant.

    Wesley R. Asinof:

    Yes, yes, sir.

    During the afternoon that the —

    Felix Frankfurter:

    And — and I think the detail and fact are essential, it seems to me, in this time of the case.

    Is the — the probable cause derived on your concession and your present statement on the basis of what they’d observed over what period of time?

    Wesley R. Asinof:

    Over a period of three days.

    Felix Frankfurter:

    Well, when did — when did the situation develop that lead you to say at that point they could have got a search warrant?

    When was it?

    Wesley R. Asinof:

    Well —

    Felix Frankfurter:

    Did you say the second day or third day?

    Wesley R. Asinof:

    I would have to answer it in this way, if Your Honor please.

    On the afternoon of the — on the afternoon when the actual search was made —

    Felix Frankfurter:

    But — but out of (Voice Overlap) —

    Wesley R. Asinof:

    — the search was made at 9:15 but during the afternoon about 1 o’ clock —

    Felix Frankfurter:

    (Inaudible) at night?

    Wesley R. Asinof:

    Yes, sir.

    About 1 o’clock in the afternoon, the agents went to Gainesville, some distance of just a few miles, and procured a daytime search warrant, a daylight search warrant based on the information or the probable cause that they had.

    The Commission had issued a warrant to the agents to execute a search warrant during the daylight hours.

    They then —

    Felix Frankfurter:

    Is that customary to have the search warrant state when it made the (Voice Overlap) —

    Wesley R. Asinof:

    Yes, Your Honor, Rule 41 (c) provides that if the — if the affidavits are positive that — that the contraband is in the house, then the Commission may — may authorize the search to be made at any time —

    Felix Frankfurter:

    You —

    Wesley R. Asinof:

    — but if they are based upon information and belief, then he may only direct the search to be made in the daytime.

    That is one of the points that — that I will develop in my argument.

    William O. Douglas:

    That — that was (Inaudible)

    Wesley R. Asinof:

    That’s right.

    That is the search warrant that they had but the Government does not and never has contended it was used.

    Now, what they did?

    They waited until 9:15 that night until after it became dark.

    The trial judge found that the reason that they had waited was because the agents wanted to see if they could see some other vehicles that they might have seen going in or coming out of that property.

    So, at 9:15 at night, they made their initial move to search the premises.

    At the time the petitioner, Roy Jones, was not at home but his wife and little boy had come in the front door and had blocked the entrance to the door and asked him not to come in, to wait until the husband came home, not with —

    William J. Brennan, Jr.:

    Now, right there, did — what did the officers tell the wife?

    What’s the reason they wanted to go in?

    Wesley R. Asinof:

    To search.

    William J. Brennan, Jr.:

    Is that the only reason they go —

    Wesley R. Asinof:

    The — the reason that the — that the agents gave according to the record is that they didn’t need — she asked them for a warrant.

    She said, “Where is your warrant?”

    They said, “We don’t need a warrant, we’re coming in.”

    William J. Brennan, Jr.:

    For what purpose did they —

    Wesley R. Asinof:

    They — they did not, at that time, state what they were going in there for.

    William J. Brennan, Jr.:

    Did they, at any time before they went by her and into the house, say why it was they wanted to go in?

    Wesley R. Asinof:

    They just said — according to the record they said, “We are federal law.

    We are coming in, we do not need a warrant.”

    That is what the records show.

    William J. Brennan, Jr.:

    Was there any fact finding whether with there was any stated purpose and what’s that stated purpose was?

    Wesley R. Asinof:

    I don’t believe that the trial judge found.

    He did find that — that — I believe that the findings of fact made by the trial judge are quite extensive, quite lengthy.

    William J. Brennan, Jr.:

    Did he make any finding on this specific —

    Wesley R. Asinof:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    — matter or purpose?

    Wesley R. Asinof:

    He — he made the finding of fact in there that the reason that they did not execute the warrant in the daytime was because they wanted to see if they could find some vehicles —

    William J. Brennan, Jr.:

    Well, that’s what I — that’s what I’m talking about.

    What did they tell the wife before they went in?

    Wesley R. Asinof:

    They told her, “We are going in.”

    They did not state that — they just simply, according to the record, said to her, “We are federal law.

    We do not need a warrant.

    We’re coming in.”

    I don’t think that there was any specific language used by them to say, “We’re going in for either to —

    William J. Brennan, Jr.:

    Now did the trial judge make any finding whether there was any specific language used by them as to purpose?

    Wesley R. Asinof:

    No, Your Honor.

    I don’t recall any specific language that was used along.

    But that is to say as to the purpose they went.

    However, they agent who was in charged did testify and he was asked two or three times, and I pointed it out in my reply brief, that he was asked several times why they — why they went in there, and his reply to it was, to the effect that they had gone in for that purpose.

    He just — he never did say that they had gone in to arrest anyone or place anyone under arrest.

    That was the Government contends in this case that the — that the purpose of going in the house was that the officers had probable cause to believe that a felony was being committed inside the house and having that probable cause that they had the right to go in to make an arrest without a warrant.

    And that after they got in the house that they discovered that there was an illicit distillery in the house, and being in there lawfully, they had the right to see the illicit distillery.

    That was the point that’s made by the Government.

    William J. Brennan, Jr.:

    Well, now, is there any evidence that the wife told the officers before they went to inquire and into the house that the husband was not at home?

    Wesley R. Asinof:

    Yes, sir, yes, sir, she specifically says, “My husband is not at home.

    Wait until Roy comes back.”

    And they — they went in.

    William J. Brennan, Jr.:

    Was there any finding whether or not the husband was in the house?

    Wesley R. Asinof:

    The finding is to the effect that the husband was not in the house and came there by an hour later.

    He was placed under arrest after the distillery had been seized.

    Now, getting to the point that they had secured a daylight search warrant, they went in the premises at 9:15 at night and the trial judge found, as a matter of fact, that the reason that they had waited was an order that they could find vehicles either going in or coming out.

    But they — the probable cause that we contend that they had and the record shows that they had, exist at the time they went to Gainesville to procure the daylight search warrant and based on that, the magistrate authorized him to make a daylight search.

    He did not make a daylight search and the trial judge found, and it was conceded by the Government in the trial court in the record, that the search was not made pursuant to the daylight search warrant but was made based on probable cause.

    Now, the actual finding made by the trial judge, that is to say the conclusions of law that the Court reached in — in overruling the motion to suppress was based solely upon the Rabinowitz case.

    Wesley R. Asinof:

    It was decided by this Court some few years ago on the theory as the trial judge held and upheld in a per curiam decision by the Court of Appeals that if the officers have probable cause that they do not need a search warrant.

    We contend that probable cause, as used in the Constitution in the Fourth Amendment, relates to what is necessary in order to procure a search warrant and not what must exist in order for the officer to make a search.

    The language used in the Fourth Amendment would require such a construction

    You mean — you think that the Court read the Rabinowitz case as saying independently of an arrest that if you have probable cause, you can search without a warrant?

    Wesley R. Asinof:

    That is correct.

    That’s the way they read it?

    Wesley R. Asinof:

    That is the — that is the construction or the interpretation that I believe that you would have to put on the trial judge’s opinion in this case.

    The trial judge —

    William J. Brennan, Jr.:

    But that’s not the view of the Government here, as I understand.

    Wesley R. Asinof:

    No, the — the Government takes a new view after —

    William J. Brennan, Jr.:

    The Government takes the view that there has to have been probable cause for an arrest and the search incident to that arrest.

    Wesley R. Asinof:

    The — the Government now takes this view.

    The Government now in this Court, for the first time, takes the view that — that in this case that the officers or the agents had probable cause to make an arrest and that they have a right to go into a house to make an arrest without a warrant and that after they got in there, they incidentally found that there was an illicit distillery in the house.

    William J. Brennan, Jr.:

    So they’re not defending the view of the trial judge.

    Wesley R. Asinof:

    Well, the language that’s used in the brief, I — it — it’s not fully clear to me as to exactly which view they are taking.

    They say that they do not read the opinion of the trial judge upon which the Court of Appeals affirmed as justifying the conclusion that the raid was made or the seizure was made for the purpose of going in there without going in to make an arrest.

    But the way I read it, of course, it — it seems to me clear, one way or the other that they did go in and that they had a probable cause and they had submission time to procure one.

    I raised this pointed, if — if the Court please, that when the officers or the agents went to Gainesville to procure the daylight search warrant, that they had the probable cause at that time, whether they were going in for the purpose of — of seizing the distillery or arresting the petitioner because of the probable cause that they had to arrest him, they could have, at that time, have procured a warrant to arrest him if that probable cause exists at that time and the Government contends that it did.

    But they did not, at any time, attempt to procure a warrant to arrest or to search with the exception of the daylight search warrant that they did actually procure.

    Now, the trial judge in his — in his findings of fact — now, we — there’s no question but what there were a sufficient number of officers.

    And the trial judge said that although the officers had ample opportunity to execute the daylight search warrant during the daylight hours, they did not do so but desiring to see as any vehicles engaged in removing the illicit liquors, they did not immediately execute the daylight search warrant but remained on watching until after dark until about 9 o’clock p.m.

    And this, I believe, would answer Your Honor’s question that at that time, the officers attempt to gain entrance in the dwelling of Roy Jones who was not at home at that time.

    Mrs.Jones attempted to block the doorway requesting the officers to wait until the husband arrives.

    And at that time, a 12-year old son of the appellant obtained a shotgun and held it in a threatening manner in an attempt to keep the officers from searching the premises.

    Mrs. Jones asked the officer if he had a search warrant, and he stated that he did not need one.

    In other words, she specifically did ask, according to the record, for a search warrant.

    So we contend that if the officers had gone in there for any purpose other than the search of the premises, they would have, at that time, stated so.

    But they went in regardless without a search warrant.

    William J. Brennan, Jr.:

    Now, did I understand you?

    There was no warrant of arrest here, was there?

    Wesley R. Asinof:

    There was no warrant whatsoever.

    Felix Frankfurter:

    So that I don’t understand if I did understand you correctly, the Government’s defense here is that if you have a warrant of arrest, incidentally, you may search.

    That is — the case doesn’t present that.

    Wesley R. Asinof:

    No, Your Honor, they contend this.

    The Rabinowitz case is a case wherein the — the deputy marshals having a valid warrant of arrest went in to arrest the petitioner and at that time, incidental to the service —

    Felix Frankfurter:

    I understand but how does that help this case?

    Wesley R. Asinof:

    They contend — they — they’re asking for an extension of that case into –into this sort of a situation that where officers have probable cause to — to make an arrest without a warrant.

    They contend that they have the right to go in to private property in order to make that arrest and then after they’re in there, incidentally, if they find illicit property that they therefore have the right to seize.

    We contend that’s not the law.

    Felix Frankfurter:

    Well, I’ll wait until they say but what you’re — what — I asked this question because I know what you arguable — I’d like to know what your argument is.

    As I understand you, you say the Rabinowitz case says, having a warrant of arrest, you may incidentally search.

    Here, you have no warrant of arrest, though the premise of the Rabinowitz case is out but because if you have a warrant, you may search without a search warrant.

    In this case, you could have arrested without a warrant of arrest therefore, you can also search.

    I don’t understand that.

    Wesley R. Asinof:

    I don’t understand that either, Your Honor.

    That — that is the very point that — that’s the very point that I’m — I’m merely trying to argue against the Government’s contention.

    I do not understand —

    Felix Frankfurter:

    But you said something else that — I followed but I wondered if you — you’re free to argue, mainly, that the unreasonable of the Fourth Amendment relates not unreasonable in abstract or that is if it, from the point of view of the world outside, bear unreasonable or reasonable.

    You say the unreasonableness is related to what it is you’re getting search warrant for.

    Is that what you’ve said?

    Wesley R. Asinof:

    I say if — if Your Honor please that — that where a sufficient time exists to procure a search warrant and the officers do not procure one and there is no emergency or unusual circumstances or it is not incidental to a lawful arrest upon a valid warrant of arrest, that they do not have the right to make the search without a valid search warrant.

    But in such cases, they must procure a valid search warrant where it is practicable to procure one.

    In other words, the Rabinowitz —

    Felix Frankfurter:

    I — I understood you to say that.

    But is that what the case has thus far allow you to say?

    Wesley R. Asinof:

    That is — that is my interpretation that this Court placed upon a case —

    Felix Frankfurter:

    You say — are you — are you saying that the cases do not justify Government’s accuse to stand on the case that you’re arguing?

    You may consider whether or not it was unreasonable or reasonable not with the presupposition with the starting point that if you can, you must get a search warrant, but in the context of what took place, forget all about the Fourth Amendment, or this a reasonable or unreasonable search.

    Wesley R. Asinof:

    It was an unreasonable search.

    Felix Frankfurter:

    But I’m saying, isn’t — isn’t that what the case is?

    Wesley R. Asinof:

    Yes.

    Felix Frankfurter:

    It’s the talk of the cases and this Court upheld —

    Wesley R. Asinof:

    Yes, sir.

    Felix Frankfurter:

    — namely, if you don’t start out at the necessity of getting your search warrant, if it’s feasible to do so, what you’d consider independently of all that was this a reasonable or an unreasonable search in relation to what they did.

    Wesley R. Asinof:

    Yes, sir.

    I think it was in view of the — in view —

    Felix Frankfurter:

    No, but I’m suggesting to you if the case is, if I understand it, allow the Government to say you don’t start out with the duty to get a search warrant if you can.

    Wesley R. Asinof:

    I do not understand that the — that the law authorizes the Government to make a search of a private dwelling house except in two instances.

    Is the Taylor case flatly against that?

    Wesley R. Asinof:

    No, no, Your Honor, the Taylor case is not against that.

    In the Taylor case, as I — as I recall, the Government relies upon the Taylor case but we do also — the Taylor case did not hold that Your Honor.

    Felix Frankfurter:

    What about the Rabinowitz?

    Wesley R. Asinof:

    The Rabinowitz case is —

    Felix Frankfurter:

    Rabinowitz made it reasonable because you had a warrant of arrest.

    Wesley R. Asinof:

    Yes.

    Felix Frankfurter:

    But that has nothing to do with getting the right to search.

    Wesley R. Asinof:

    Well, that — that, of course, is — that, of course, is what made it reasonable in the Rabinowitz case.

    It made —

    Felix Frankfurter:

    So therefore — therefore it negative the requirements that you urge, namely, you have to consider whether they can get a search warrant.

    Wesley R. Asinof:

    That’s right.

    Felix Frankfurter:

    And if they can, then they can’t search without it.

    Wesley R. Asinof:

    That’s right.

    Felix Frankfurter:

    Well, now, how does the fact that you can arrest, give them leave to disregard the requirement of getting a search warrant?

    Wesley R. Asinof:

    I do not believe it does.

    Felix Frankfurter:

    But doesn’t the case hold that?

    Wesley R. Asinof:

    I don’t know what case, Your Honor.

    Felix Frankfurter:

    Rabinowitz.

    Wesley R. Asinof:

    The Rabinowitz case does not hold that, Your Honor.

    Felix Frankfurter:

    What does it hold?

    Wesley R. Asinof:

    It holds — it holds incidental to a — to a valid warrant of arrest that —

    Felix Frankfurter:

    Well, we’re seeing the same thing.

    What do you mean by incidental?

    It means if you can arrest, you don’t have to get a search warrant.

    Wesley R. Asinof:

    That’s right.

    If — well, that — in that case, though it was a — it was an arrest was made upon a valid warrant of arrest.

    Felix Frankfurter:

    Well, yes, but it means that if you can make a valid arrest, you don’t have to bother about a search warrant.

    Is that right?

    Wesley R. Asinof:

    That’s correct.

    Felix Frankfurter:

    Therefore, the requirement of getting a search warrant if you can is not the doctrine of this Court according to the cases today.

    Wesley R. Asinof:

    Well, now according —

    William O. Douglas:

    What — what did the search bring?

    Wesley R. Asinof:

    Provided the search is reasonable.

    Now —

    Felix Frankfurter:

    (Voice Overlap) nothing.

    But bearing on the unreasonableness, the fact that you get a search warrant isn’t relevant, is that right?

    Wesley R. Asinof:

    That’s right.

    Felix Frankfurter:

    All right.

    Could —

    Wesley R. Asinof:

    Reasonableness is the main — is the main (Voice Overlap) —

    Felix Frankfurter:

    Reasonableness unrelated to your opportunity or rather the opportunity of the law which is to get a search warrant.

    Wesley R. Asinof:

    But, of course, reasonable — that would be one of the elements of reasonableness, that is to say whether or not —

    Felix Frankfurter:

    It’s not according to the cases.

    Wesley R. Asinof:

    Well, that —

    William O. Douglas:

    But what’s the element of (Inaudible)

    Wesley R. Asinof:

    But then, the Jeffers case, if — if Your Honor please, that Jeffers case change that.

    Now, in the Jeffers case, this Court went on and said over and again, this Court has emphasized that the mandate of the amendment requires adherence to judicial processes.

    Only where incidental to a valid arrest or in exceptional circumstances may an exemption lie and then the burden is on those seeking the exemption to show the need for.

    Now, that, of course, is — was the one of the latest expressions by this Court and was an expression related in the Rabinowitz case.

    Now, the trial judge found in this case, as a matter of fact, that if the officers have probable cause to procure — to — to make the search that they do not need a search warrant, now, if that is the law, then all need for search warrants is at an end because, as I understand, the decisions thus far that in order to procure a valid search warrant, the officers must first have a probable cause.

    And probable cause is something that must be determined by a — an impartial magistrate and not by the officers themselves.

    Wesley R. Asinof:

    In order to procure a valid warrant to search, the magistrate must pass upon whether or not those circumstances are sufficient to show it.

    Felix Frankfurter:

    Well, wasn’t all has been — what you’ve just said, all been set (Inaudible) as well in a number of dissenting opinions and are you asking the Court to overrule the cases in which those are dissenting views —

    Wesley R. Asinof:

    Oh, no.

    Felix Frankfurter:

    — rather than court views?

    Wesley R. Asinof:

    No, Your Honor.

    Felix Frankfurter:

    You don’t think we have to overrule anything besides —

    Wesley R. Asinof:

    I — I do not.

    I do not except —

    Felix Frankfurter:

    (Voice Overlap) —

    Wesley R. Asinof:

    — except the Fifth Circuit Court of Appeals in this case.

    I don’t —

    Felix Frankfurter:

    They’re not for your purposes but is it —

    Wesley R. Asinof:

    Yes.

    Felix Frankfurter:

    — according to the due regard for what has been said here before?

    Isn’t it enough to say the Court of Appeals is wrong, if they acted on what the Court has decided?

    Wesley R. Asinof:

    Well, they did not act on what this Court has decided, if Your Honor please, because the Court of Appeals has just wrote a per curiam decision in this case affirming the trial judge.

    And the trial judge based it upon the Rabinowitz case which is not in point.

    It is not in point with the facts of this case.

    William O. Douglas:

    Would the arrest here (Inaudible)

    Wesley R. Asinof:

    If — no, Your Honor.

    There — there was no arrest made in the house and that is the point in this case.

    The Government contends —

    William O. Douglas:

    (Inaudible)

    Wesley R. Asinof:

    They did not.

    That was a 12-year old boy.

    William O. Douglas:

    He is inside the house?

    Wesley R. Asinof:

    Yes, he was inside the house.

    But there was no arrest made in the house.

    The Government contends that the officers now, the Government contends that the — that the agents went in for the purpose of making an arrest, although there’s no evidence in the record to indicate that.

    William J. Brennan, Jr.:

    Well, isn’t the Government’s position that they might reasonably believe that the husband was in the house in spite the wife’s denial of it and having reasonable or probable cause to believe that he’s guilty of the crime may enter to the house for the purpose of arresting him even though he wasn’t there, that their entry for that purpose justified their seizing the evidence which was subsequently used against them to convict him?

    Wesley R. Asinof:

    That is the Government’s contention but there is no evidence in the record, no statement by any agent that he went in there for that purpose.

    There’s no — there’s no statement they have been watching the house for about three days.

    During that time, there’s no evidence that they saw the petitioner going in or coming out.

    There’s no evidence that they thought or believed he was in there.

    There’s no evidence that he had — that they had anytime attempted to procure a warrant to arrest him or not.

    William J. Brennan, Jr.:

    Now, are you telling us that this is the first time the Government has sought to sustain —

    Wesley R. Asinof:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    — this seizure on the basis of an entry with probable —

    Wesley R. Asinof:

    Yes.

    William J. Brennan, Jr.:

    — cause to believe that the husband was there and —

    Wesley R. Asinof:

    That is correct —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Wesley R. Asinof:

    — that is not position taken by the Government in — in the trial Court and it was not the position taken by the Government in the appellate — in the Court of Appeals but the position was first taken in this Court.

    Now, we have, in this case — we — we contend this, that there is a distinction between a daylight search warrant and a nighttime search warrant, a distinction made by Rule 41 (c).

    And I noticed that the Government in their responds, in their response brief, has not, at any time, sought to answer that argument.

    And the argument is this, that it requires positive affidavits in order to procure a nighttime search warrant and merely probable affidavit stating probable cause to procure a daylight search warrant.

    The officers in this case did not at the time they went in to make the search whether with or without the warrant at 9:15 at night.

    They did not have positive information that a distillery was in operation in the house, and they went in.

    And we contend that even under Rule 41 (c), that even a magistrate, even the entire judicial power of the — of the United States could not, under those facts, have authorized a search during the night season.

    And that when the officers did in this case when they — when they went in and — and made the seizure, during the night season, that they went further that then — then the entire judicial power of the United States could have actually authorized under Rule 41 (c).

    Now, this is a point that I have raised in my brief and the Government has not answered.

    William J. Brennan, Jr.:

    You have better points on the matter.

    Wesley R. Asinof:

    I — I have better ones than that and — if Your Honor please.

    But we — we contend that in this case that the Government — the Government’s main point that they raise is, that they went in to make an arrest, that that was the purpose of going in.

    We say that there is absolutely not want to order of testimony in the record.

    There’s no evidence and there’s no fact finding or — or finding of fact by the trial judge to sustain the contention made by the Government to this effect.

    Felix Frankfurter:

    Does it make — does it make any difference this was contraband?

    Wesley R. Asinof:

    I would think it made no difference, Your Honor, because of the fact that the Constitution still stands between the — the Government and the citizen to protect them for many unreasonable search and seizure.

    And this was an unreasonable search and seizure according to the record in this case.

    William J. Brennan, Jr.:

    Well, what was seized?

    William J. Brennan, Jr.:

    A steel?

    Wesley R. Asinof:

    It was a steel.

    A steel — a contraband steel was seized.

    William J. Brennan, Jr.:

    What steel?

    Big one?

    Small one?

    What?

    Wesley R. Asinof:

    It was — it was what was known as a large-type steel.

    William J. Brennan, Jr.:

    Difficult to move or (Inaudible)

    Wesley R. Asinof:

    They — they destroyed it according to the evidence.

    They destroyed the steel inside the house.

    And —

    Earl Warren:

    We’ll recess now, Mr. Asinof.