Ker v. California

PETITIONER:Ker
RESPONDENT:California
LOCATION:Beaumont Mills

DOCKET NO.: 53
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 374 US 23 (1963)
ARGUED: Dec 11, 1962
DECIDED: Jun 10, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – December 11, 1962 in Ker v. California

Earl Warren:

George D. Ker et al., Petitioners, versus California.

Mr. Stanley.

Robert W. Stanley:

Mr. Chief Justice, may it please the Court and Counsel.

This case is on certiorari to the District Court of Appeal for California.

The petitioners were convicted of possession of narcotics.

The issue before this Court is whether the entry into the petitioners’ apartment, their home, and the subsequent seizure of the narcotics, the evidence upon which they were convicted, over their objection constitutes an unreasonable search and seizure in violation of their constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution.

Byron R. White:

(Inaudible)

Robert W. Stanley:

There is a question of the initial arrest.

There’s a conflict in the inferences to be drawn from the evidence on that point, most certainly.

I think it’s obvious from the record that the purpose of the entry of the police officers into the petitioner’s home was for the purpose of searching the home in an attempt to find the narcotics they were looking for.

The respondents have raised —

(Inaudible)

Robert W. Stanley:

That’s correct.

At the time that the case was tried — the reason this question arises, at the time the case was tried, I don’t think there was any question about the fact that the theory of the prosecution was at the entry into the petitioners’ home was for the purpose of searching.

Nothing, unfortunately, was asked of the police offers directly what their motive is and what their purpose was of going into the home, but the only logical inference that could — inferences that can be drawn from their conduct is that they went into the home for the purpose of searching.

And, we do have the benefit of the questions of the prosecutor at the time of the trial.

For example, the question that was asked of the arresting officer was, “Tell us in sequence and detail what happened after you entered the home?”

He said that they’ve got the key to the door from the manager of the apartment.

This took 15 to 20 minutes because the manager apparently was concerned and wanted to call his lawyer.

They told the manager that they were going into the apartment because they thought that there was some narcotics in the apartment and they wanted the key so that they wouldn’t have to break the door down.

Then after going into the home, after entering surreptitiously without any announcement of their arrival, the petitioner, George Ker, was sitting on the couch and he stood up.

Now, the first thing that they said to him I think is also indicative in sequence and detail, exactly as the thing arose, of what their intention was.

They displayed their identification to him and said, “We’re conducting a narcotics investigation.

We’re Sheriff’s Narcotics officers and we’re conducting a narcotics investigation.”

Well, anyone who practices criminal law in the Los Angeles County, I’m sure knows what a narcotics investigation was, and I’ll get into this a little bit later because I think one of the arresting officers indicated to us by his testimony what he considered an investigation was.

Right at that time, the petitioner, Diane Ker, the wife, walked from the kitchen and he had displayed his identification to her and said the same thing.

Then, he walked over to the kitchen.

Now, we don’t know how far he walked.

We do know from his testimony — from the officer’s testimony that it was a large living room.

He walked over to the kitchen and, standing in the doorway, he was able to observe a bricklike brown package sitting on some small scales.

Robert W. Stanley:

Observing this, he called both of the petitioners into the kitchen together with the other arresting officer, and — who had come into the apartment at the same time, and he questioned them about it and he asked him if it was theirs.

He asked him first what it was and they answered they didn’t know, then he said, “Well, it appears to me to be marijuana.

Is it yours?”

There was no answer from either one of the petitioners.

Now, the question that was next asked of him at one point — this testimony incidentally was gone over several times because of the procedure under a section of the California Code that allows this question to be raised out of the presence of the jury.

The question was asked at one time, “And what did you then do?”

And the answer was, “I then placed the defendants under arrest for suspicion of violation of the State Narcotics Act.”

At another place, the question was asked, “In seeing that marijuana, did you place them under arrest?”

And the answer was, “Yes.”

A subsequent search was then conducted of other parts of the home and other marijuana was found.The next day, the officers — one of the officers went to a car which was owned by one of the petitioners and made a search of that and found some additional marijuana.

John M. Harlan:

(Inaudible)

Robert W. Stanley:

There’s no evidence that they did.

The testimony was that the brick package of marijuana had a small rip in it and the inference, apparently, is that the officer was able to see the green leafy substance because he said that it — he identified it as green leafy substance and he said that he’d seen it before and it appeared to be marijuana.

Where he was at the time that he did this, we don’t know, at least we don’t know from the record.

William J. Brennan, Jr.:

What was the information, (Inaudible)

Robert W. Stanley:

The information was for possession of marijuana.

I think that these facts, together with what happened immediately preceding the arrest and also what happened the day before, indicate that the purpose of going into the apartment was to conduct a narcotics investigation.

They didn’t know that there was any narcotics in there and they didn’t have a reasonable suspicion sufficient, I believe, for obtaining a search warrant to search the home on the grounds that there — that narcotics would be found within the home.

In fact, one of the officers stated that they had no direct information that the apartment contained any narcotics.

What did happen, however —

Byron R. White:

(Inaudible) probable cause to get a search warrant?

Robert W. Stanley:

It’s my position, Mr. Justice White, that our case would not be essentially different.

I feel that under the decisions of this Court and based upon reason that despite the fact that officers have probable cause to search a dwelling, that there should still be the necessity obtaining — of obtaining a search warrant in the absence of some dire necessity.

Byron R. White:

Or could they have (Inaudible)

Robert W. Stanley:

If they had probable cause to make the arrest under state law and they complied with the requirements for making an arrest under state law and if in fact the search were a search incidental to a lawful arrest, I think it would —

Byron R. White:

You would (Inaudible)

Robert W. Stanley:

That’s correct.

Thats correct.

Our case is that the purpose of the entry into this apartment was an entry for the purpose of searching, although the officers phrased it in terms of conducting a narcotic investigation.

They let us know what an investigation meant.

Robert W. Stanley:

In fact, on page 111 of the record, there’s this language.

Did you tell Diane Ker, “Now, look at this”, while you were uncovering something or, “I want you to watch this?”

Answer: “I made the statements to both defendants throughout the investigation.”

Question: “What did you tell them?”

“My exact words, I do not recall.”

“Generally, what do you say?”

Answer: “Watch us while we’re looking at this particular spot and so forth.

We called their attention to it and if they don’t look in our direction when we are checking an article, we reiterate the statement and do not continue the searching until they are watching what we are doing.”

Searching in an investigation is synonymous with police officers.

What other type of an investigation would they be conducting?

This is the most common thing that a lawyer practicing criminal law in the Los Angeles area finds.

Officers will come up to a person and generally a person who is a known narcotic user, who — or who they’ve just seen talking to a known narcotic user and say, “We’re conducting a narcotic investigation.”

The next step that usually happens is that they attempt to obtain the person’s consent.

And — well, that’s not involved here because the officer at the same time walked over to the kitchen and saw the contraband.

It’s significant in determining what the officer’s state of mind was and what they intended to do when they went into the apartment.

Also, their language to the landlord, they didn’t say, “We’re going in to arrest somebody”, or “You have a man there who we suspect of having bought some marijuana, who has some marijuana.”

They said, “We believe that there’s marijuana in the apartment and we’re going in.”

John M. Harlan:

(Inaudible)

Robert W. Stanley:

That’s correct.

I don’t want to be like the gravedigger in Hamlet but in this type of a case, language is important and unfortunately, when we find ourselves on appeal or before this Court and we have to look at a record that we wish were more complete.

I think that–

(Inaudible)

Robert W. Stanley:

I think the record is complete to the extent necessary to determine this case.

Now, Mr. Justice Harlan, you brought up an issue that I want to address myself to and that is the events that happened before the entry into the apartment.

I think also that those events indicate that — indicate quite clearly that the purpose of going into the apartment was an investigative purpose to see if there was some marijuana there.

John M. Harlan:

(Inaudible)

Robert W. Stanley:

I do.

John M. Harlan:

(Inaudible)

Robert W. Stanley:

I think that’s very significant.

John M. Harlan:

You think that is?

Robert W. Stanley:

I certainly do.

John M. Harlan:

(Inaudible)

Robert W. Stanley:

That’s correct.

I don’t feel that there was probable cause for an arrest or a search.

John M. Harlan:

(Inaudible)

Robert W. Stanley:

I don’t feel that that is constitutionally the significant factor, although I think it is has evidentiary value and I think that inferences can be drawn from it.

Of course, at the far ends of the spectrum, we have on one case where a police officer may make an arrest two or three hours after the search and it’s hardly — that’s certainly some evidence that the search was not incident to the arrest.

On the other hand, we may have evidence that even though the arrest and the search took place practically at the same time, that the purpose of the arrest was only a pretext for the search, or else that the real purpose, especially where a dwelling is concerned, of going into it was to search.

And what we’re really concerned with is whether what was in the minds of the police officers at the time they went in.

This case is similar I think, to the case of United States versus Johnson where the officers smell some opium, what they thought was opium, burning inside of the home.

And when they op — when the door was opened for them, they said, “Consider yourself under arrest.

We’re going to search.”

This Court held that the real purpose of going into the apartment was to search and that the arrest was only a pretext for the search, and I think we have a similar situation in this case.

Now, with respect to the events that happened before the entry into the apartment, the — this man, Murphy, apparently had been known to the officers for some time, at least to one of the officers.

And Officer Berman, who was one of the arresting officers, had received information over a period of time from anonymous sources or from sources that he did not disclose, claimed a privilege from disclosing them, concerning Murphy in which Ker’s name had come up.

And the information was that Ker, the petitioner, was dealing in marijuana and he had probably got the marijuana from Murphy.

Another officer had made a buy from Murphy the day before the — these events in this case took place.

The following day, the day that these events took place, these officers were tailing Murphy.

They were following him and they lost track of him, so they went up to the — to a sparsely populated place in Los Angeles on Fairfax Avenue near Slauson and about the same place that they had been the night before.

They went up to the top of the hill there so that they could see for some distance in both directions and they noticed, when they went up there, the car that the petitioner was sitting in, it wasn’t in the same side of the street as the — that the officer had purchased the marijuana the night before was sitting out.

It was on the south side of the street.

They weren’t particularly interested in Ker.

They did note, though, that he was sitting there and that there weren’t any other cars with — there were other cars, but none within 100ft, I think.

So, they eventually saw Murphy drive by and when he drove by, they attempted to tail him again.

He turned up into the oil fields where he had gone the preceding day, turned his lights off, and they lost track of him.

They went back and parked again and 12 minutes later, approximately, they saw him coming out from the oil fields and he parked behind the petitioner’s automobile.

They saw him get out of the automobile and walked up to the side of Ker’s car.

Now, there’s — of course, there’s some conflict even before this Court, on that issue of how far away they were and what they were able to see.

They were watching through a good pair of binoculars.

They were probably within 500 to 1000 feet.

Robert W. Stanley:

That seems to be the predominating testimony, although one officer said it was farther.

And, I think we can infer from the evidence that they were very interested in Murphy and in what he was going to do.

In the — at the very beginning of the trial, one of the arresting officers said that it was either light or it was extremely well-lit.

He could see very well and, as soon as the — they were able incidentally to identify Ker in Court from their observations at a distance, a brick of marijuana is, according to the evidence, is about the size of a brick and shape of a brick.

And as soon as they saw Murphy drive by, they immediately followed him.

They immediately pulled up and drove past, and when they drove past, they saw Mr. Ker sitting in the automobile and he was half-facing Murphy.

He was standing on the street talking with him.

And they pulled up towards Slauson, about the same distance away as they had been before, and continued to observe them all this time.

The period of time that elapsed during this observation was approximately two minutes.

Now, a question was asked a number of times, “Did you see anything passed or did you see anything in his hand?”

And the answer was, “No, I didn’t.”

It’s true and it was pointed out by respondent at one point.

The question was asked, “Could you see anything in his hand?”

And the answer was, “I didn’t see anything in his hand.”

And then, after it was repeated, “Well, could you?”

And the answer was, “Well, I don’t believe I would be able to see anything in his hand if he had it”, paraphrasing it, the question, “Why not?”

And the answer, “Well, because of the distance and the fact that it wasn’t extremely light.”

The fact remains that nothing was seen to pass at that time.

Now, I think the subsequent conduct of the officers after that event took place can illustrate to us that the — that they didn’t believe that he had any contraband in his possession at that time or if he did have any contraband, if they thought he did, they weren’t interested at that time in arresting him.

They had pull past where the — where Mr. Murphy was talking with Ker and parked in a parking lot about the same distance away.

This was towards Slauson.

Now, as soon as the conversation ended, they appeared to be talking, the two of them.

Ker drove away.

He drove towards Slauson.

He went right past where the officers were, and their testimony was that they followed him.

There was nothing said that they were pursuing him or attempting to catch him and in fact, they followed him quite a distance.

He turned left on Slauson and went all the way down to La Brea which is a considerable distance.

He turned left on La Brea and after going approximately a block, he made a U-turn and came back on La Brea.

They said that they lost him at that time.

Now, I’m sure that if these officers were interested at that time in arresting this man, that was their purpose, it would’ve been an easy matter to arrest him.

Robert W. Stanley:

He drove right past them.

In fact, the officer — one of the officers states in another context what he meant by “following.”

The night before, they were following Murphy and they lost him because he had made a turn also.

So, the question was asked, “Well, were you pursuing him?”

And he said, “No, we were following him”, to that effect, for the purpose of tailing him.

And, I’m sure that that’s what they were doing with Ker also.

Now, these officers, at that time, had never seen Ker before.

They didn’t know anything about him.

All they know is that he had talked with the man that had made a sale of marijuana and that they knew something about.

So —

(Inaudible)

Robert W. Stanley:

Those particular officers.

That’s correct.

Those part —

(Inaudible)

Robert W. Stanley:

That’s right.

Another officer who wasn’t there at the time had received information from anonymous sources or from sources he didn’t disclose and also from an informant.

This was Mr. Black who took the stand incidentally and denied that he had given them that information.

He stated that he had received information from Mr. Black that — about Ker’s narcotic activities.

So, the officers who were tailing Ker didn’t know anything about him except the fact that he had talked with Murphy.

Then, after losing him, they ran a Department of Motor Vehicle check and found out what his name was and what the address that the automobile was registered to was and went back and saw Deputy Berman who had this previous information about the petitioner.

And, learning about the previous information with all the information they have, they then went out to his home.

(Inaudible)

Robert W. Stanley:

No, Berman was not his superior.

(Inaudible)

Robert W. Stanley:

They were all narcotic —

(Inaudible)

Robert W. Stanley:

They were all narcotic officers of equal rank and if one of them had charge of the operation, it’s not disclosed in the record and from my personal knowledge, I don’t believe that narcotic investigations are necessarily run in Los Angeles with someone in charge of a particular investigation.

What was Berman’s (Inaudible)

Robert W. Stanley:

Berman told the other officers the information that he had received over a period of approximately six months from other persons concerning Ker.

(Inaudible)

Robert W. Stanley:

He also told them about the information that he had received from the Informant Black.

William J. Brennan, Jr.:

(Inaudible) the information as to Ker, the information from Informant Black —

Robert W. Stanley:

The —

William J. Brennan, Jr.:

— that Berman had on him?

Robert W. Stanley:

There were two sets of information.

We can phrase it that way.

There was the informa — yes, the only information was possessed by Berman.

That’s correct.

William J. Brennan, Jr.:

As to Black — from Black to Ker.

Robert W. Stanley:

From Black.

Byron R. White:

Weren’t there anonymous sources that he had?

Robert W. Stanley:

Yes, but that was also pos — that information was possessed by Berman also.

Byron R. White:

Yes.

Robert W. Stanley:

From November until May — in November 1959 until May of 1960, about six months.

He had — in the course of his work, had received some information concerning the petitioner.

Byron R. White:

Besides Black.

Robert W. Stanley:

Besides from Black.

The information he received from Black was from May of 1960 until July — June of 1960, although he could not recall when he had received it or when the most recent time that he had received any information from Black was.

Armed with–

(Inaudible)

Robert W. Stanley:

Terrhagen was a — he was not a police officer or an undercover officer.

His part in the picture was this.

The undercover officer, one by the name of Cook, had been introduced to Terrhagen by a confidential informant.

The officer asked Terrhagen if he could purchase some marijuana from him.

Terrhagen then put — was the man who took the undercover officer up to the hills and that’s where they met Murphy.

And, Terrhagen got out of the car and went with Murphy into the oilfields and came back with a block of marijuana and then, Terrhagen and the officer went to Terrhagen’s home and a sale or part of that kilo of marijuana was made.

Terrhagen then drops out of the picture.

The officers then knowing something about Murphy began tailing Murphy.

And, the following day after the sale was made, the officers began the surveillance of Murphy at Murphy’s home and when they lost him they then went up to the place where the sale had been made the night before.

Tom C. Clark:

These were the same officers?

The same officers that had the information from Terrhagen?

What was his name, Terrhagen?

Robert W. Stanley:

Terrhagen.

Tom C. Clark:

Terrhagen.

It was the same officers that sent him to Murphy and Murphy went off, wasn’t he came back (Inaudible)

Robert W. Stanley:

The officers who — one of the officers who tailed Murphy that evening had been watching the narcotic transaction the evening before from a distance, and had also received information from the undercover officer who participated in the sale about what went on.

Tom C. Clark:

They knew that Murphy was a seller then.

Robert W. Stanley:

They knew that or they had reason to believe that Murphy was the one who obtained the narcotics for — that he gave to Terrhagen and Terrhagen in turn gave to the undercover officer.

Arthur J. Goldberg:

(Inaudible) — in the record, we assume that Terrhagen didn’t have (Inaudible)

Robert W. Stanley:

I think that’s a very fair assumption, although the man who introduced the undercover officer to Terrhagen obviously knew that he was a confidential informant.

Arthur J. Goldberg:

He was an informant.

Robert W. Stanley:

That’s correct.

(Inaudible)

Robert W. Stanley:

I’m quite sure that he didn’t.

The information at any rate was exchanged after the officers lost sight of the Ker vehicle and they went out to the home of the Kers and one officer went around underneath the window because — for the purpose of catching something that would be thrown out since he said that it was his experience that often times, when they enter apartments that the occupants will attempt to dispose of the narcotics and on the occasions that the officer — these officers had gone into apartments, they did it surreptitiously.

That was their reason.

Another officer was sent to determine if somebody was home and Mr. Warthen, the man who actually saw the narcotics in the kitchen, went around and checked the automobile and found that the automobile was home and it was at that time that they went to the apartment manager and said they were going in and wanted the keys so they wouldn’t have to break his door down.

The — I think that — I think one of the crucial things here, and I said this before, is the purpose of the officers in going into the home.

I think it can be — to dispose of this problem, I think that it can be — I think it’s obvious from all of the evidence that the purpose that they had when they went into the door was to see if there was anything there.

We found, for the first time before this Court, that an additional item of testimony that of the defendant below.

The petitioner here was introduced in the respondent’s brief, and that is that George Ker said that when the officers came in, they immediately handcuffed him and placed him under arrest.

One of them went into the kitchen and the other one went into the bedroom.

This, of course, is a variance with the statements of all of the officers and I think that when we have evidence like that from a person whose home has been invaded that we have to take that in a larger sense, he wasn’t a professional.

He didn’t know what was going to happen.

And the larger sense was that he recalled the rather traumatic experience of someone coming and walking right into his home.

He recalled being handcuffed and taken into the kitchen and that what he purported to give was a summary of the transaction, that he wasn’t aware of the problems that we have here in the sequence of events and their importance upon a determination of whether the entry was to search or to arrest.

Now, to answer Mr. Justice White’s question now, I think would be appropriate, and that is that there is a distinction between an entry into a home to arrest and one to search.

And I think that that distinction has become apparent since the case of Mapp versus Ohio in state court proceedings.

In one instance, we have a direct constitutional question involved under the Fourth and Fourteenth Amendments.

Robert W. Stanley:

In the other, we have a constitutional question ins — in what I consider to be a collateral sense because a search incident lawful arrest would depend, first, upon the validity of the arrest which is something that is not a constitutional question in the broad sense and secondly, upon the reasonableness of the search afterwards that — and whether it’s really incident to the arrest.

I think in both of these cases that the testimony here demonstrates that the search was unreasonable.

First, that it cannot be sustained as a search incident to an arrest because the primary purpose was to search.

And (Voice Overlap)

John M. Harlan:

You’re arguing this case, at least as I understand you correctly, as if it were a federal case.

Is it your view that we’re to judge this search and seizure in terms of federal standards?

Robert W. Stanley:

I feel that there are minimum constitutional rights that a person now has from action by state officer.

And insofar as the invasion of a person’s home is concerned, that the minimum right that a citizen is entitled to coincides with this Court’s decision in federal cases involving the entry into a home.

In other cases, it may vary but, in the case that we have before us I think that — I think they’re the same.

I feel that the entry into a person’s home is something different from other types of searches and other types of arrest.

And, I feel that the minimum protection a person should have before an entry is made into his home is that the facts possessed by the police should be presented to a neutral magistrate for a determination of whether or not probable cause exists because I think it’s been demonstrated and I feel that this Court has demonstrated in its decisions that police officers in a zealous pursuit of law enforcement sometimes ignore the rights of individuals and that their actions are unreasonable.

And that — when we present this to a magistrate afterwards, after the damage has been done, and after the — with the benefit of hindsight and undoubtedly, some weight being given to the fact that narcotics or other contraband was actually found, that there’s no real protection at all.

And this is — without even discussing the cases where narcotic investigations are made, that is, searches a person’s homes where they find nothing.

And this is something that one who practices criminal law cannot ignore because they see it all the time.

John M. Harlan:

What’s — what you’re saying wouldn’t even be so in a federal case because we have federal statutes that — like your California statute, generally —

Robert W. Stanley:

That’s correct.

John M. Harlan:

— that authorizes narcotic agents to search without a warrant on a probable clause.

Robert W. Stanley:

That’s correct.

John M. Harlan:

I mean, to arrest without a warrant.

Robert W. Stanley:

I’m talking only about the constitutional problem.

I feel that in — I feel there very well may be statutes and that may come up before this Court.

But I think that so far as the constitutional question that’s involved here is that, first, the officers, if they have probable cause, must show that — what they have to a neutral magistrate before the entry into a person’s home.

Now, I feel also — I don’t mean to limit consideration of this case to that point because I feel that, even with the limiting of hindsight looking at this problem that there wasn’t sufficient probable cause in the minds of the officers to warrant a search of the petitioner’s house, nor was there sufficient probable cause to arrest these people.

Potter Stewart:

Now, California has had the so-called exclusionary rule, what — for what, seven years and so?

Robert W. Stanley:

Yes, that’s correct.

Potter Stewart:

(Inaudible) case was in 1955.

Robert W. Stanley:

That’s correct.

Potter Stewart:

And, I think you’re right from the beginning in that case you’re certainly in a — right from the start, the California Supreme Court announced that it was not going to either purport or to follow the federal rule as to what was and was not unreasonable.

Robert W. Stanley:

Correct.

Potter Stewart:

Among other things, they correctly said the rule was a difficult concern in the welfare of cases in this Court that they were going to work out their own standards, (Inaudible)

Robert W. Stanley:

That’s correct.

Potter Stewart:

Are there any other California cases similar to this one, involving the search of a home and an arrest in a home without either a search warrant or an arrest warrant?

Robert W. Stanley:

There are numerous California cases involving the search of a home without warrant for — either for arrest or for a search.

And the California cases seems to be that it seemed to hold that even where the search of the dwelling is made some time after the — or rather, the arrest was made some time after the search and it can still be sustained as a search incident to an arrest.

And I think the interesting thing about the California cases is that there is no case to my knowledge which actually draws the constitutional distinction between an arrest and a search, that is, a search incident to an arrest and just plain search.

Fortunately, the federal cases that have taken up this problem mainly concerns searches of unoccupied places as without any prior knowledge of who might be in the house.

Practically all of the California cases involving the search of dwellings are cases which — in which the police officers have prior information concerning the persons who were within the dwellings as opposed to just information of what might be contained there.

Potter Stewart:

Now — excuse me.

Robert W. Stanley:

It’s quite common also to find arrest made in Los Angeles similar to the Agnello decision in this case or the Chapman case where an arrest is made and then information is received about where narcotics came from and then the police would go over to that location and then search that place.

Now, this is quite common also and sustained as a search incident to a lawful arrest.

So —

Potter Stewart:

Now, before you proceed, if I can just (Inaudible) —

Robert W. Stanley:

Yes.

Potter Stewart:

— interrupt you, so I won’t interrupt you again, at least for a while.

I want to be sure I understood your answer to Mr. Justice Harlan.

Is it or is it not your contention that at least since the Mapp case, Mapp against Ohio, California is under a constitutional duty to apply the general rules which have been worked out — general standards which have been worked out by this Court under the Fourth Amendment as to what is and is not an unreasonable search or seizure?

Robert W. Stanley:

I do, and that is my position.

John M. Harlan:

You do?

Then I misunderstood you.

Robert W. Stanley:

I — yes, I do feel that since the case of Mapp versus Ohio that California is under a constitutional duty to apply the decisions in the federal cases because those are constitutional decisions and this is now a constitutional question.

John M. Harlan:

Oh, I misunderstood you.

I thought you said you thought that in relation to the search of the home that ordered liberty or due process —

Robert W. Stanley:

Well, —

John M. Harlan:

— required federal standards, but I didn’t understand you to say what you’re saying now.

Robert W. Stanley:

This — the reason I limited it to that was that this case only involves a search of a home.

John M. Harlan:

I see.

Robert W. Stanley:

I feel though that in the general sense which is not before the Court, that California is still obligated to apply the federal decisions because those federal decisions now delimit the question of what a person’s rights are under the Fourth Amendment and what is an unreasonable search, whether it’s unreasonable is a constitutional question.

John M. Harlan:

Or in other words, to put it concretely, your police schools, your police training officers, instead of reading California decisions, now ought to read federal decisions.

Robert W. Stanley:

I believe so.

I think that —

Potter Stewart:

Does not involve (Voice Overlap) —

Hugo L. Black:

They could read both, couldn’t they?

Potter Stewart:

— statutes, of course, it involves —

Robert W. Stanley:

I’m sure that they will read both but apparently, the position of the Second District Court in this case was that, having decided the case as they did that Mapp versus Ohio couldn’t possibly make any difference and I can’t agree with that reasoning.

Potter Stewart:

When was this case decided in a chronological reference to the Mapp case?

Robert W. Stanley:

I’m glad you brought that up, Mr. Justice Stewart because this case was tried before Mapp versus Ohio came down.

And as a matter of fact our — both of our briefs was in — that is the Attorney General’s brief, as well as the petitioner’s brief, was in before Mapp versus Ohio came in.

Then, before our reply brief was due, the decision came down in Mapp versus Ohio.

Potter Stewart:

Your reply brief in the District Court of Appeals?

Robert W. Stanley:

Yes, and we got permission to file supplemental briefs on that point and in our and then in the Attorney General’s supplemental brief this was discussed.

The Court disposed of the point by saying that it doesn’t matter.

I think it can be taken two ways.

It doesn’t matter because this was actually an arrest and a search incident to an arrest.

Or it doesn’t matter because California is not bound under the decision of Mapp versus Ohio to follow the federal rule.

I feel that in either case the Second Appellate District Court was wrong and those are the grounds that I’ve just discussed.

Now, in the respondent’s brief, their position appears to be that California has a peculiar narcotics problem and because of this peculiar narcotics problem should be left a greater latitude or degree of autonomy in deciding these questions.

And I feel that I’m giving them the benefit of the doubt there by saying that because I feel that what they’re really saying is that this isn’t a constitutional question that California should be left free to make up its own rules.

Well, I think California, as any other state should be left free to make up its own rules only if they do not violate the minimum standards of constitutional guarantees.

And, those minimum standards are prescribed, I feel, by the decisions in the federal cases.

It may be that this Court will, in time, make those decisions different and make the rules different.

But at the present time, I feel that California is bound by that.

Of course, they can provide higher standards, make it more difficult for police officers to break into a person’s home and I feel that the course of history has been whenever we make it more difficult for police officers to accomplish a given end and with the object of protecting a person’s rights, that it doesn’t — as contended by the respondent, it doesn’t impair the administration of justice or police efficiency.

It makes them better and that substantially the position that we have in this case.

(Inaudible) this search was incident to an arrest, is that right?

Robert W. Stanley:

That’s correct.

And, the rule in the Federal Court is that, assuming that you applied federal standards here that a search can be made incident to a legal arrest.

That’s right, isn’t it?

Robert W. Stanley:

That’s correct.

So, this would vary then, would it not, to factual question as to whether or not — is that your position?

Robert W. Stanley:

That’s one of the positions.

Robert W. Stanley:

I don’t feel — I feel that factually, the search was not a search incident to a lawful arrest, that the arrest —

(Inaudible)

Robert W. Stanley:

— was a pretext for the search.

But California said that it was, is that right?

Robert W. Stanley:

The District Court in California analyzed it that way, that it was a search incident to an arrest which — I wasn’t sure but may also be unreasonable, although I don’t think that problem is particularly involved here.

I think that a search incident to an arrest is unreasonable in the constitutional sense when the pretext for the search was the arrest and I think that United States versus Johnson is a clear case on that point.

(Inaudible)

Excuse me.

Byron R. White:

Help me out a little here.

Assuming that the officer here had (Inaudible)

Robert W. Stanley:

If he had a search warrant?

If the officer had a search warrant, I don’t feel that we would be here because a point — there wouldn’t be a point to be made.

Byron R. White:

(Inaudible)

Robert W. Stanley:

I personally am opposed to that.

I don’t think that there is presently any constitutional point.

I feel that —

Byron R. White:

(Inaudible)

Robert W. Stanley:

I think — I feel that the surreptitious entry into an apartment is of itself a constitutional question.

I — the reason that I can’t argue it is that I don’t feel that —

Byron R. White:

The federal cases, you don’t now sustain it?

Robert W. Stanley:

That’s correct.

I feel that a search warrant — a warrant to search someone’s apartment or someone’s home, if it’s lawfully issued, I don’t see too much of a point in the fact that they get a key to enter, although I feel that they should knock on the door.

I think that for an arrest the same is true, and we have a statute to that effect in California, but the statute has been ignored by the decisions of the Court which —

Byron R. White:

The Courts have construed the limitation away.

Robert W. Stanley:

They’ve construed it completely away by saying, even though the statute requires it, it’s not necessary because in narcotics cases, if they knock at the door, persons are likely to flush the stuff down the toilet.

Byron R. White:

Well, if the officer had had a search warrant then — and entered the apartment any — in this way or some other way, even in conformity with this — with the California statute.

I take it your argument still is that even if he had an arrest warrant and entered validly, that the search that was conducted was not a search incident to an arrest.

Robert W. Stanley:

Yes, I feel that’s correct.

Byron R. White:

That even if he had arrested him first, walked right in the door and had arrested him, the accompanying search was not a search incident to an arrest?

Robert W. Stanley:

I feel that’s correct because I think that if those — if that had happened, that the arrest would have been simply a pretext for the search.

Byron R. White:

You don’t make the point that the scope of the search was unreasonable?

Robert W. Stanley:

I feel —

Byron R. White:

I mean, just looking in the kitchen was not — you don’t say would be — is an unreasonable search incident to an arrest?

Robert W. Stanley:

Well, after the arrest — if we go chronologically, after the arrest was made there was a — they continued searching or as the officer said, investigating.

They went into the bedroom and went through practically everything and —

Byron R. White:

And there was the car.

Robert W. Stanley:

Then the car, the next day — well, I don’t think that there’s any question what the search of the car the next day was an unreasonable search, although, to the petitioners, it doesn’t make too much difference because that’s just additional marijuana.

They’re going to — so far as they’re concerned, if they’re going to go to jail for the marijuana in the kitchen, then it doesn’t matter where other marijuana might have been found.

William J. Brennan, Jr.:

But I take it that you — the assumption of a warrant, of course is not valid.

There wasn’t a warrant and I take it that you do, as you do in your brief deny that there was probable cause for either an arrest or a search.

Robert W. Stanley:

That’s correct.

William J. Brennan, Jr.:

And you would have said an arrest would had been illegal if they had arrested him on his — in his car on the way back from the rendezvous with Murphy.

Robert W. Stanley:

Yes, I feel that an arrest would’ve been illegal at that time because those officers didn’t have any knowledge about Ker and the only thing that they had seen was that he met and appeared to have a conversation with Murphy.

Byron R. White:

And so they — even when they acquired further information from Berman, if they had, after that, arrested Ker on the street, you would say the arrest would’ve been illegal.

Robert W. Stanley:

I do.

I feel that even after they received the additional information that they still didn’t have sufficient grounds to arrest him for possession of marijuana, and I think that that becomes even stronger and takes on a constitution — more of a constitutional dimension when they go into his home for the purpose of finding out if he has the marijuana and if he does, to arrest him.

I don’t feel that there would’ve been any arrest here if they didn’t find the marijuana there.

There’s nothing to indicate after he made the U-turn that he had seen them or that he was attempting to get away or he was going fast or trying to dispose of something.

I don’t feel this is a hot pursuit type of case where they temporarily lose him and then later go into his home.

I think that what it is that they’re surveying this man they don’t know anything about because they’d seen him talk with Murphy.

Perhaps, at that time in their mind, they may have thought that he was Murphy’s contact and then, after getting the subsequent in — they don’t know where he went, as a matter of fact, or that he went to his home and they had no information that narcotics were likely to be found in his home.

Byron R. White:

(Inaudible)

Hugo L. Black:

(Inaudible)

Robert W. Stanley:

Yes, he did.

He met across the street and I would imagine the officers would be extremely concerned with noting what they were doing there and what Murphy had in his hands, if he had anything.

Hugo L. Black:

And Murphy comes (Inaudible)

Robert W. Stanley:

That’s correct.

This is like persons coming from the home of a known seller or a known addict.

Some persons may be selling and some not, but the fact that someone talks with a known addict is — I don’t feel is probable cause that he has received anything for a belief that either one of them have exchanged any contraband.

Byron R. White:

Well, do you say that (Inaudible)

Robert W. Stanley:

That’s correct.

I don’t believe even — of course that didn’t happen, but I don’t believe that even in that event that there was sufficient probable cause for an arrest.

And particularly I don’t feel that there was sufficient probable cause to go to the man’s home and get in his home as he — go in their — his home as they did to arrest him.

Hypothetically, I don’t feel that there was sufficient probable cause to arrest him on the street, although that’s not the question that we have here.

William J. Brennan, Jr.:

(Inaudible) that the statute, the California statute comparable, I thought, to the federal statute which even with a search warrant requires an officer before he enters to identify himself and state his purpose.

Did you suggest to Justice Clark that that California statute was made a dead letter?

Robert W. Stanley:

Oh, I don’t feel there’s any question about that.

That’s been made a complete dead letter.

We have a number–

William J. Brennan, Jr.:

Either — I thought that some of — in your cases have indicated that the requirement of announcement of purpose and identity was excused in exigent circumstances but not otherwise.

Robert W. Stanley:

Well, it’s — I may — perhaps my statement was too broad.

It’s been excused in practically every narcotic case (Voice Overlap) —

William J. Brennan, Jr.:

You mean, when they knock at the door and the occupant runs toward the back, they don’t have to announce their purpose because they may — if they have an arrest warrant, suppose he’s going to try to get rid of the contraband.

I thought that was the circumstance in which your court said that the requirements of notice of purpose and identity were excused.

Robert W. Stanley:

No, we have — I believe that our cases hold that where a pers — when they hear a person running or a toilet flushing or something of that nature that that constitutes a pretty tight conduct which itself supplies the excuse for complying with the statute.

We have case —

Byron R. White:

But that wouldn’t excuse if entering with a key without —

Robert W. Stanley:

No.

Byron R. White:

— knowing anything.

Robert W. Stanley:

That’s correct.

Byron R. White:

Now, that’s (Inaudible)

Robert W. Stanley:

That’s a different circumstance, but we have cases — even the District Court opinion in this case, I think, covers this point quite well in stating that where a police — we raise this incidentally, this point and the opinion takes care of it by saying that in these cases, officers feel that a surreptitious entry is necessary and because of that reason, they don’t have to comply with the statute.

Now, these —

William J. Brennan, Jr.:

Had there been decisions later than Maddox on this?

Robert W. Stanley:

Yes, there’d been — I believe there’d been a number of decisions on this point.

In fact, they state that the reason is that the rule goes back.

It’s — the statute is only a restatement of the common law and that, because of this, it can be excused by circumstances.

And, one of the circumstances happens to be a narcotic case.

Thank you very much.

Earl Warren:

I know you want to reserve a little of your time.

Earl Warren:

So, you may have five minutes at the end to rebut if you wish, Mr. Stanley.

Mr. — and, you may have five minutes more if you wish, too, Mr. Ringer.

Gordon Ringer:

Thank you, Your Honor.

Earl Warren:

You may now proceed.

Gordon Ringer:

Mr. Chief Justice and may it please the Honorable Court.

Before proceeding any further with the argument for respondent in this case, I would wish, if I may, to delimit the issues perhaps a more restrictive manner than Mr. Stanley has delimited them.

But I do not believe that this Court has faced under Footnote 9 of the Mapp decision with any problem as to the reasonableness of the search of the bedroom in which a half-ounce of marijuana was obtained, the search of the kitchen cupboard which succeeded the arrest, and the subsequent search the following day of the car belonging to the petitioner, Diane Ker.

It has been the law of California since the inception of the Cahan decision.

The citation on that is the Kitchen’s case in 46 Cal.2d.

All the cases incidentally which I will mention in argument are compendiously contained in our summary of the California cases at the close of our brief.

But to repeat, it has been the law of California since the Cahan decision that unless an objection is made at the trial to the introduction of evidence whose providence is contended to be illegal, such a point may not be asserted upon the appeal.

Turning to the record in this case, we concede for the purpose — at least for the purpose of review by certiorari that objections were properly made for the purpose at least to preserving the point here as to the kilo-brick of marijuana in the kitchen.

That case — that was litigated at the trial.

As to the question of the search of the bedroom, the search of the kitchen cupboard, and the car, it was specifically stated by Mr. (Inaudible) at the trial, page 68 of the record, there was no objection to the introduction in evidence of these matters.

There was no litigation as to the reasonableness or unreasonableness of the search which produced these items and that question isn’t properly here.

Now —

Earl Warren:

Was the search of the bedroom on a different occasion than the — than finding the brick?

Gordon Ringer:

It almost immediately followed, if Your Honor please.

Earl Warren:

And they did litigate the question of the brick.

Gordon Ringer:

Yes, at the probable cause hearing.

There’s no question that was litigated.

Earl Warren:

Well, every time they opened a drawer or go into another room after the first search has been litigated, must they object to every question along those lines?

Gordon Ringer:

Oh, I see Your Honor’s point.

But the point is, assuming that I will assume arguendo the correctness of my position up to this point, namely that the officers had probable cause for an arrest, namely that the entry of the apartment was legal.

If my position is sound on these points, the only conceivable objection which they could have to the introduction of this other contraband is that it was produced by a skirt — by a search party which in scope, extent, an area was not justified by the fact that it was incident to an arrest based upon probable cause.

That raises other issues.

That’s a question of scope under Harris, Rabinowitz, and the other cases which apply that rule.

Earl Warren:

I didn’t think Mr. Stanley was particularly interested in whether the search was just in the kitchen or whether it was in the kitchen and the bedroom.

He was concerned with whether the search, as a whole, was a reasonable search.

Gordon Ringer:

I just want to nail the point down, Your Honor.

Earl Warren:

Well, but you — I thought you said it wasn’t here (Inaudible) — wasn’t here?

I — that’s the thing that bothered me.

Gordon Ringer:

Well, I don’t think it is, Your Honor, but I — though I say that with the reservation in mind that Mr. Stanley is not particularly relying upon it, but I do not believe that question is here.

Hugo L. Black:

What page of the record did you refer to, (Inaudible)

Gordon Ringer:

68 — pardon me, Your Honor, 68.

I’ll speak more directly into the microphone.

Hugo L. Black:

What part (Inaudible) —

Byron R. White:

We can’t find it on the —

(Voice Overlap) — find anything here.

Gordon Ringer:

You can’t find — oh, top of the page, 68 of the record.

Mr. Corn: “Your Honor, I ask that the evidence, Peoples 1, 2, and 3 for identification and their contents be received into evidence.”

The Court: “Any objections?”

Mr. (Inaudible) : “No objections.”

The Court: “It may be received.”

Then, the people rest.

What were those items?

Gordon Ringer:

One was the kilo-brick, two (Inaudible) — the kilo was 2.2 lbs of marijuana package.

Two, a half-ounce of marijuana found in the kitchen cupboard.

Two contains an addition to a half-ounce of marijuana contained in a box that was found on top of the bedroom dresser.

Also in the dresser was found a vile and some innocuous pills that were found not to contain contraband.

Three, consisted of some items that were recovered the subsequent day in the car bel — registered to Mrs. Ker, some seeds which were marijuana, some seeds which were not marijuana, a package found I believe, if the record sustains me, under the dashboard which also contained marijuana.

(Inaudible)

Byron R. White:

Well, how did that distinguish between 1, 2, and 3?

William J. Brennan, Jr.:

Yes, how did they distinguish the brick from the other one?

I don’t follow you.

Gordon Ringer:

Oh, well, this was just to what — the numbe — numeration is just the way the Court has been grouping evidence.

Byron R. White:

I know, but you — do you agree that its objective on the — number one, let’s say —

Gordon Ringer:

Well, the matter was litigated, Your Honor.

Byron R. White:

Is that — that’s your point.

Gordon Ringer:

That’s my point.

Byron R. White:

(Inaudible)

Gordon Ringer:

The matter was litigated as —

Byron R. White:

The matter was litigated and then number 2 and 3, wasn’t litigated.

Gordon Ringer:

Wasn’t litigated.

William J. Brennan, Jr.:

You mean that (Inaudible) —

Gordon Ringer:

What?

William J. Brennan, Jr.:

How do you mean litigated?

How is it litigated?

Gordon Ringer:

Oh, the only question that was raised at the probable cause hearing which immediately came at the inception of the trial —

William J. Brennan, Jr.:

Is this something like a motion to suppress the (Inaudible)

Gordon Ringer:

It is in effect a motion to suppress.

It’s called a motion under 995 of the California Penal Code.

William J. Brennan, Jr.:

And you say the only subject to that was the question of the brick, is that it?

Gordon Ringer:

It was called a probable cause hearing and the only evidence that was discussed was the brick.

Byron R. White:

What you’re really arguing is that, here, the first one is being convicted and — for marijuana events and two items — (Inaudible) items as evidence was introduced.

One was obtained illegally and the other was obtained legally.

One was obtained illegally and one was obtained legally, but both were introduced.

Is that what you’re saying?

Do you think that that’s (Inaudible)

Gordon Ringer:

Oh, no, no, no.

I certainly don’t go that far, Your Honor.

Byron R. White:

You know, and I agree that — I agree that you say that one of them was — that they were both legally obtained.

Gordon Ringer:

Yes, Your Honor.

Byron R. White:

But at least, you would say that one (Inaudible)

Gordon Ringer:

Assuming arguendo that one was legally obtained and one was illegally obtained.

Byron R. White:

Yes.

Gordon Ringer:

The fact of the illegality would not taint the entire conviction where —

William J. Brennan, Jr.:

Well, is that what you’re saying or are you say — are you saying that even if 2 and 3 were illegally obtained, under your state requirements as to objection, no objection was made, it cannot be heard (Voice Overlap).

Gordon Ringer:

That’s right.

William J. Brennan, Jr.:

Is that what you’re saying?

Gordon Ringer:

That’s right.

William J. Brennan, Jr.:

You’re saying that also.

Gordon Ringer:

Yes, I’m saying that also.

William J. Brennan, Jr.:

Also (Inaudible)?

Gordon Ringer:

Yes.

Earl Warren:

Is that the only distinction between 1, 2, and 3?

Gordon Ringer:

I believe 2 was valid.

The — 2 clearly, under my position, would be that the items in 2 found in the kitchen cupboard and the items also found in the bedroom were conducted in the course of a search incident to a lawful arrest which was not unreasonable in scope, namely–

Earl Warren:

Also make this same argument about the brick?

Gordon Ringer:

Yes, yes.

Earl Warren:

But the only distinction so far as we’re concerned, as I understand you is, in this Court, is that, in one instance, that of the brick, he raised it below and in the case of the bedroom and the other room, he didn’t.

Gordon Ringer:

That’s right.

Earl Warren:

Now, is that the only distinction between the two?

Gordon Ringer:

That’s the distinction I would draw.

That’s all.

William J. Brennan, Jr.:

And would that follow from that that the state — if he were right as to 1, on any one of his argument, that did not have (Inaudible) any part of the basis of his conviction.

Nevertheless, that we have to sustain the conviction?

Gordon Ringer:

Yes.

William J. Brennan, Jr.:

For failure to object to the admissibility of 2 and 3.

Gordon Ringer:

Yes, I would think so, certainly, the minimum extent.

William J. Brennan, Jr.:

Then you shouldn’t have taken the case.

Gordon Ringer:

I would say so, if the — everything follows.

Excuse me, I do not mean to say that the case isn’t here necessarily, but it would tend to follow if 1 is correct.

(Inaudible)

Gordon Ringer:

I really do not know what was in the mind of counsel.

Tom C. Clark:

The argument number 2.

Gordon Ringer:

No, it doesn’t.

This would be entirely speculative, Your Honor.

To say that the —

Tom C. Clark:

Why wouldn’t you object to one and object to the other?

Gordon Ringer:

I do not know, Your Honor.

I do not know.

Hugo L. Black:

What you’re saying is — you’re saying it though (Inaudible) three separate arguments introduced into evidence against him: one liquor, one narcotics, one something else and he objected to one but did not object to the other.

Gordon Ringer:

Yes.

Hugo L. Black:

That under the California rule, that brings you up again to that objection.

Gordon Ringer:

I believe they’re all —

Hugo L. Black:

On what context do you feel that is that the conviction should stand in there?

Gordon Ringer:

Well —

Hugo L. Black:

Is that what you’re saying?

Gordon Ringer:

Not where we have liquor or some other item, Your Honor, because, as Mr. Stanley points out, we’re dealing with the same — either all at the same time of contraband, Your Honor, you see.

Hugo L. Black:

(Inaudible) understand is, I thought you were drawing a difference between three separate — you have three articles of heroin.

Gordon Ringer:

The three articles of — three separate items of the same material.

Hugo L. Black:

Do you say that with reference to them doesn’t — the two of them, he didn’t object?

Gordon Ringer:

That’s right.

Hugo L. Black:

Under California law?

Gordon Ringer:

That’s right.

Hugo L. Black:

He objected to one, assuming that he didn’t say that (Inaudible), is that it?

Gordon Ringer:

That’s right.

Hugo L. Black:

You are treating them as though they were — they are three separate articles of the same kind — commodity.

Gordon Ringer:

Exactly.

Hugo L. Black:

But they are three separate articles.

Gordon Ringer:

Exactly.

Byron R. White:

Well, aren’t you — you’re arguing that — aren’t you also arguing, I take it, (Inaudible) even if he had objections on 2 and 3, the objections are not (Inaudible) because that that search follows an arrest and was lawfully incident to an arrest?

Gordon Ringer:

Yes, Your Honor.

Yes.

Byron R. White:

And consequently, you’re back again to having — at the most, one illegal piece of contraband and (Inaudible) and 2 legal (Inaudible).

Gordon Ringer:

Arguendo at the most.

Earl Warren:

How far in point of time were these separated?

That is the finding of the brick and the finding of the other marijuana in the bedroom.

Gordon Ringer:

I would assume, Your Honor, though the record is not specific on this, but it ensued almost immediately.

Earl Warren:

Immediately?

Gordon Ringer:

Yes.

Earl Warren:

Where will we find in the record the question that was raised by the defendant on the reasonableness of the search and the decision against him?

Gordon Ringer:

The only litigation, Your Honor, of the matter was prior to page 45 of the record.

To be exact, the middle — from the middle of the page to the bottom of page 43 to about 10 lines from the top of page 44, and again a very fairly lengthy paragraph at the bottom of page 44.

This consists of the argument of counsel upon the probable cause hearing.

(Inaudible)

Arthur J. Goldberg:

(Inaudible)

Gordon Ringer:

Yes, he did.

Arthur J. Goldberg:

(Inaudible)

Gordon Ringer:

With this exception, Your Honor, that at the probable cause hearing, nothing was said about anything that was found in the bedroom or elsewhere other than the kitchen.

Arthur J. Goldberg:

(Inaudible)

Gordon Ringer:

So that really isn’t within its —

Arthur J. Goldberg:

(Inaudible)

Gordon Ringer:

That’s right.

It isn’t within the scope of the rule.

Arthur J. Goldberg:

(Inaudible)

Gordon Ringer:

Whether —

Byron R. White:

A valid arrest.

Gordon Ringer:

A valid arrest.

I accept Justice White’s suggestion whether it was a valid arrest and also as to the scope of whatever was actually litigated at that time, namely the brick.

To revert —

Byron R. White:

But you can’t — I mean, at the search, you can’t defend this, can you, without connecting it with an arrest?

Gordon Ringer:

No, I connect it to an arrest and the Court found there was probable cause for an arrest.

Earl Warren:

Well, Mr. Ringer, you referred us to page 43 where the judge says, “Well, Mr. (Inaudible), what is your theory why there is no probable cause here?”

Now, that infers if there has been — that question has been raised before, but it isn’t raised on this page.

Gordon Ringer:

(Inaudible)

Earl Warren:

Where was it first raised?

So we can see what the scope of the objection of the defendant was.

Gordon Ringer:

All there is, Your Honor, that I find is a statement at the bottom of page 36 that the — excuse me, I’ve gotten my page wrong.

Gordon Ringer:

I don’t find any specific statement by defense counsel, Your Honor, except this intention to call the Informer Black to controvert the contention of the officers that Black had given information to the officers respecting this defendant and reverting now to the question of probable cause for an arrest.

I wish to mention first that it is not California’s contention that California law in this case should be constain — should be sustained merely because it is ours and because we love it.

Our contention is that, subsequent to the Mapp decision, California standards should be sustained by this Court if those standards are reasonable within the due process clause.

We certainly do not demand absolute carte blanche for absolute everything that conceivably come into the minds of the California legislature of the California Court.

It is our position that the arrest in this case of petitioner, George Ker, was a valid arrest based upon probable cause.

The standards in this case of probable cause being the same under California law as they are under federal law that the search of the apartment was based upon reason — excuse me, that the search of the apartment was a reasonable search as an incident to the arrest and also, if I may add, the methods by which the officers gain entry into the apartment were not illegal.

Now, turning to the facts, I think that Mr. Stanley in his argument for petitioner has unnecessarily restricted the meaning of the information which the officers possessed at the time they entered the apartment for the purpose of making the arrest.

We can speculate what they might have done under other facts, under other circumstances.

The question is raised if the officers believed at the time they saw Ker and Murphy at this meet, a meet incidentally in the same spot where Cook and Terrhagen had actually consummated a transaction of narcotics the night before, the only distinction being that Cook and Terrhagen were on the east side of the street facing north and Ker and Murphy were on the west side of the Fairfax Street facing south.

Why didn’t they arrest him at this time?

The officers — Officer Warthen didn’t know Ker, didn’t know him personally.

Of course he got a look at him and he was able to identify him for the purposes of trial as a man whom he saw, but he didn’t know George Ker.

The one who knew George Ker, who had seen his picture, and who received information that Ker was a purchaser of narcotics from Murphy was Officer Berman who didn’t come into the picture with respect to this arrest until later.

In other words, the facts in this case are a block.

Having failed to follow — to track Ker to his lair due to this illusive U-turn which he took losing the officers, the officers attempted to find out who he was.

They checked with the Department of Motor Vehicles and they learned that this automobile which they have witnessed Murphy approach and where Murphy and Ker have a conversation is an automobile registered to Ker and registered at a given address, 4801 Slauson, which is on Slauson and extremely near the intersection of Fairfax and Slauson, near where, the night before, there had actually been consummated a narcotics transaction and where, the same night, not half-an-hour previously, the officers had seen Ker and Murphy meet.

And prior to that, had seen and tracked Murphy to his lair in the oil fields where he arguably, the officers had reason to believe, kept his stash because that’s where he went the night before when he transacted the narcotics sale with Cook and Terrhagen.

Realizing now who the car was registered to, having transmitted that information to Officer Berman within 15 to 30 minutes following this meeting between Ker and Murphy, the officers tell Berman, “We’ve checked the car out.”

The officers tell Berman what they had seen.

Berman tells him — tells them what he knew.

Therefore, this — what to the layman might appear to be an ambiguous meeting between a narcotics seller and another man but comes in the light of the officers’ experience, these were experienced officers.

They are not neophytes.

Berman had 3 years experience and had participated in 300 arrests, I believe.

Warthen, I believe, 4 years as a narcotics officer, had participated in what he called quite a few hundred arrests.

These are experienced officers.

These facts previously known to them, this information, we submit, reasonably justified them as prudent and cautious men, there’s no doubt that they were, at that time, in a belief that there had been an actual consummated narcotic transaction between Ker and Murphy at that night.

And bear in mind, the information which the — all the officers possessed at the time they entered that apartment, at the time rather that they approached the apartment was not the information which Warthen alone and Markman alone had at the time of seeing the meet, they superimposed upon that the information from Berman.

We submit that, under California law, as well as under federal law, the officers were certainly warranted in entertaining a belief that Ker had committed that offense.

Now, turning to the entry of the apartment, Mr. Stanley has made the point in oral argument that Section 844 which is the California entry for purpose of arrest statute has been made a dead letter.

I believe this is an exaggeration.

Gordon Ringer:

Maddox in 46 Cal.2d is the leading case on this subject, as I believe it was Justice Brennan who mentioned during Mr. Stanley’s argument.

There, of course, had been cases subsequent to Maddox.

But California exception to the entry for purpose of arrest statute which requires the officers to announce their authority and purpose before entering —

William J. Brennan, Jr.:

Excuse me.

Is it only entry for purposes of arrest, not for purposes of a search?

Gordon Ringer:

Yes.

This is an arrest —

William J. Brennan, Jr.:

I see.

That differs from the federal statute, doesn’t it?

Gordon Ringer:

Yes.

This is an arrest statute.

William J. Brennan, Jr.:

Yes.

Gordon Ringer:

844 is an arrest statute.

William J. Brennan, Jr.:

Yes.

Gordon Ringer:

Yes, to effect, an arrest.

William J. Brennan, Jr.:

The federal statute, as I recall it, was on the entry for the purpose of serving a search warrant.

Gordon Ringer:

That’s correct.

We’ve got a service of search warrant, Section 2, that’s 1531 and 1532 of the Penal Code.

William J. Brennan, Jr.:

Are they comparable?

Gordon Ringer:

They’re comparable to the federal execution of a search warrant statute.

We do in two sections what the federal statute more compendiously does in one.

Now, the California exception is as follows.

If the officers, as reasonable men again, entertain a belief that the arrest will be frustrated, if they complied with the statutory formalities, the officers are excused from compliance with the section.

Secondly, the second exception, if the officers as reasonable men, entertain an honest and reasonably based belief that if they comply with the formalities contraband evidence would be destroyed, they are likewise to be excused.

A more recent case than Maddox upon this point is the case of Hammond which is in 54 Cal.2d involving the same situation.

Now —

Tom C. Clark:

Is that where they got a key in it, the case?

Gordon Ringer:

I think they busted in, in Hammond, Your Honor.

The facts when one reads 100 cases in preparation —

Tom C. Clark:

Yes.

Gordon Ringer:

Sometimes the facts tend to cloud, sir.

Tom C. Clark:

Is it a common practice in California for officers to get a key and warrant (Inaudible)?

Gordon Ringer:

I’ve seen quite a few cases on the subject.

Your Court (Inaudible)

Gordon Ringer:

Only if the facts come within the exception that there is (Inaudible) — would have to be — first of all, the arrest statute allows the breaking in, physical breaking in where there is authority and purpose announced by the officers.

The statutory exception allows them to bust in physically if the officers are excused under the judicial gloss placed on the statute.

The reason for getting a key rather than busting in is of course, prevent destruction of property, for one reason why they would enter, use a key rather than bursting in.

And also, because as Warthen testified in this case, bear in mind, Your Honor, Warthen is an experienced officer.

He’s participated in 300 arrests or more.

Warthen testified at the bottom of 93 of the record.

He was asked by the prosecuting attorney about the surreptitious entry into the apartment and I’ll quote it.

It’s short but I think it’s quite relevant.

“Why would you be very careful as a narcotics investigating officer?”

Here is this word “investigating.”

The word “investigating,” I may add, is given a kind of mystic significance by Mr. Stanley.

“Why would you be very careful as a narcotic investigating officer to be extremely quiet when you have a key in your hand entering a house in which you think there is a possibility of narcotics possession being committed?”

Answer: “Because on many, many occasions, persons who flush narcotics down toilets, pushed them down drains and sinks, and many other methods of getting rid of them prior to my entrance when I had made noises in the process of entering.”

Byron R. White:

It seems to me that every time the exception is relied upon, every time someone gets a key to get into an apartment, it only underlines the fact that (Inaudible) going to see is narcotics, then they wouldn’t arrest the man at all.

Gordon Ringer:

I’m sorry.

I didn’t quite get the important question.

Byron R. White:

Well, this underlines —

(Inaudible)

Gordon Ringer:

And why not?

Why not, Your Honor, a duplicate purpose?

If they have probable cause to arrest a man, as well as probable cause to believe that the contraband is there.

(Inaudible)

Gordon Ringer:

If upon —

Byron R. White:

(Inaudible) — I don’t suppose if they had (Inaudible) — if they had known Ker — if they had thought that Ker had disposed of the narcotics, if they thought he had obtained from Murphy before he got to his apartment, I doubt that they would have entered and arrested him at all.

Gordon Ringer:

Perhaps not there and at that time, Your Honor.

Byron R. White:

Because you have no — because they would have some difficulty, I would assume, and they getting a (Inaudible)

Gordon Ringer:

You’re right, Your Honor.

Perhaps they would not.

They knew it had been all disposed of, but this, they did not know.

They knew that they had in his house a person whom they had great reason to believe was a seller.

Byron R. White:

(Inaudible) arrest the fellow, then or the next day or something else —

Gordon Ringer:

Sure.

Byron R. White:

— the overwriting —

Gordon Ringer:

Sure.

Byron R. White:

— an overwriting consideration as to a different narcotic.

Gordon Ringer:

It’s an extremely important consideration, Your Honor, it is.

There’s no question about that.

In this and in any other contraband case and of course, in any other case —

Byron R. White:

This is the whole basis for creating an exception under the statute.

Gordon Ringer:

Hmm?

Byron R. White:

It would seem this is the whole basis for creating the exception in the service of — in the arrest statute.

Gordon Ringer:

To some extent, yes.

But as Justice Treanor points out in the Maddox case, I may say, first, this is contraband to which the defendant has no — which the defendant has no right to possess anyway.

I’m not saying he has no standing to complain of the search, but this is contraband and the California Health and Safety Code contains provision which I understand are similar to the provisions announced in Trupiano case.

It mentioned that we won’t return the stuff to him, but the California statutes are 11653 to 11657 of the Health and Safety Code which is the provision of the code concerning narcotics.

Even if Mr. Ker will acquit, his stuff could not be returned.

I use “stuff” as a term of art, if you please, to refer to narcotics.

William J. Brennan, Jr.:

One of the things that puzzles me about this is, as I understood the Maddox (Inaudible), the exception applied only when in the particular case, there were (Inaudible) circumstances which would justify the entry without the requirement of his purpose and identity.

Now here, this officer says that not that there were any special circumstances that — to this entry which he thought justified getting a key and entering rather quiet, but rather that, because of his general experience when these things happen, I gather he follows this practice in all narcotics cases.

Now, do your Court sustain that in Trup — that’s not what Maddox say.

Gordon Ringer:

Well, the Court here —

William J. Brennan, Jr.:

Maddox, as I thought, that Justice Treanor was very careful to limit the (Inaudible)

To a circumstance, he talks about people moving away (Inaudible) or running down the hall.

And in those circumstances, that it would be proper for the officer, and he’s unreasonable, to require him first to say what he was there for.

Gordon Ringer:

This —

William J. Brennan, Jr.:

When as in this case, he has legal grounds to believe that felony is being committed and hears retreating footsteps that concludes another peril would be increased.

William J. Brennan, Jr.:

That that felon would escape if he demanded entrance and had claimed his purpose is not unreasonable.

But, as I understand this, if that’s what your Court to sustains, this officer could do this.

Get a key and enter the way he did without regard to whether there was special circumstance in this case indicating a reason for not first announcing purpose merely based on his general experience that this is what happens in narcotics cases.

Is that what your Court — it says, it’s alright?

Gordon Ringer:

Well, it was first — I may first, given the answer which no doubt would be unsatisfactory if the Court approved it in this case, of course.

But there are cases subsequent to Maddox, expanding the exception in Maddox to where the officer does have reason to believe this will happen.

Now, one of the facts in this case is the officers’ experience.

I could, if Your Honor wish, cite you by letter or otherwise.

William J. Brennan, Jr.:

Oh, I appreciate that, but I’m beginning to wonder if Mr. Stanley isn’t right when he says, “If that’s the interpretation of the statute, then the exception has followed up the statute.”

Gordon Ringer:

What would Your Honor — how — may I —

William J. Brennan, Jr.:

The narcotics cases, that area.

Gordon Ringer:

May I pose a question rhetorically, Your Honor?

Not that I’m asking Your Honor to ask me but for —

William J. Brennan, Jr.:

No (Voice Overlap) —

Gordon Ringer:

— argument purposes —

William J. Brennan, Jr.:

I gather — I don’t (Inaudible)

Gordon Ringer:

I put it — I know you don’t a — you asked my answer.

William J. Brennan, Jr.:

Well.

Gordon Ringer:

But sir, the rhetorical question is this.

What would have happened, Your Honor, if the officers had knocked, said — someone comes to the door.

The officers said, “We are Officers Markman and Berman of the Sherriff’s Department.

We are here for a certain purpose.”

Now, if I may make this point, just as certain weapon are tools of the police for the war against crime, indoor plumbing consisting of the toilet, the drain, and the garbage disposal are weapons of the criminal.

Perhaps I am stating this more eloquently than it ought to be because it’s a rather minimal subject for inflated eloquence, but it’s true nevertheless, sir.

If the officers had not, mind you, you’ve got a — you’ve got one man in his lair who’s not a simple, happy partaker of the hobby, sir, but he is — the officers have reason to believe, a cold and calculating seller of narcotics.

I’ll leave the words “coldly calculating” out as they merely add color.

But, he’s a se — believed to be a retail seller of narcotics.

Had they knocked at that door and demanded entry, then the officers, I believe, had reason to believe, not only incidentally that Warthen testified, Markman was outside the window ready to catch the marijuana if it would come flying out the window.

The officers certainly, on the basis of their past experience and the reported cases sustained them, in the 100 instances, where they do?

At least knock on the door and this takes place in the belief that Ker, knowing Ker to be whom they had reason to believe, would’ve attempted to dispose and perhaps could’ve succeeded in disposing that marijuana.

Gordon Ringer:

Now, having entered the apartment, if the Court please, the question arises whether the kilo-brick of marijuana which was discovered, sir, in plain sight in the kitchen without the entry of a closed door into the kitchen from the living room, was the product of a search incident to a lawful arrest.

California found that it was and we respectfully submit that great weight should be given to this finding by the California Court.

Now, the actual arrest of petitioners, according to the testimony of the officers, occurred following to the finding of this brick of marijuana.

California’s position on this subject has been rationalized by Justice Treanor of the California Supreme Court in the Simons case, in 45 Cal.2d, using reasoning which —

Byron R. White:

That’s — was Simon?

Gordon Ringer:

Simons.

I can give Your Honor the page citation if you would wish.

It’s quoted at length in our brief.

This reasoning I believe is sound reasoning and I respectfully commended to the Court as being reasoning which, in support of the result which is fully consistent with standards of due process under the Fourteenth Amendment, in Justice Treanor’s reasoning, if I may paraphrase him, is as follows.

The officers, as I argue here and I’ll apply the reasoning to the facts of this particular case to make it more compelling, if I’m able to make it compelling, the officers have probable cause to arrest Ker for possession of marijuana.

Under the federal cases and I take it, that Rabinowitz obtains as it is under the law of California, the officers have the right, as an incident to that arrest based upon probable cause to conduct a search not unreasonable in extent of the person and property of the offenders, the Kers, for the purpose of — certainly at the very least, of discovering the contraband for whose possession they were arrested.

There is, therefore, a right, if you will, to invade the privacy of the defendants, the petitioners.

I can think of very few invasions of the right to privacy more catastrophic than an arrest and it is our position here that the arrest was valid as based on probable cause.

If there is probable cause to make the arrest, it is certainly no more a violation of the right to privacy or the constitutional rights of the accused for the search to precede rather than to follow the arrest, so long as independently of what has turned up in the search, the officers have probable cause for making the arrest.

William J. Brennan, Jr.:

Tell me, Mr. —

Gordon Ringer:

Yes?

William J. Brennan, Jr.:

Was there — did they have any knowledge before they entered that Ker or either of them was there?

Gordon Ringer:

The testimony of Berman —

William J. Brennan, Jr.:

Is that (Inaudible)

Gordon Ringer:

— is quite clear and specific on this point, Your Honor.

At the probable cause hearing, Officer Berman testified, this is the first long paragraph on the page —

William J. Brennan, Jr.:

What page is that?

Gordon Ringer:

31 of the record, sir.

I had estimated as 10 or 12 lines down from the top.

William J. Brennan, Jr.:

I see, ascertaining (Voice Overlap) —

Gordon Ringer:

“We ascertained the parties were at home.”

Now, that could’ve been tested on cross-examination and was not.

Now —

William J. Brennan, Jr.:

But you’d be in a difficult spot if they weren’t there, wouldn’t you?

Gordon Ringer:

Yes, I would.

William J. Brennan, Jr.:

And that’s why you’ve got to show that there’s probable cause for the arrest.

Gordon Ringer:

Sure, except — with this exception, Your Honor.

Well —

William J. Brennan, Jr.:

Well now, if they had got the key and just walked in without a search warrant, there wasn’t anyone there and they picked this up, would your case be the same?

Gordon Ringer:

No, it would not, sir.

Byron R. White:

(Inaudible)

Gordon Ringer:

That would not, sir.

Byron R. White:

— to show that there was probable (Voice Overlap) —

Gordon Ringer:

Yes, yes sir.

I didn’t mean to — (Inaudible) — if you’re going to concede a point, Your Honor, you always want about 5 or 10 seconds of appreciation of what it is and that is correct.

I agree with Your Honor.

That’s my case.

William J. Brennan, Jr.:

(Inaudible)

Gordon Ringer:

That’s my case.

Now, before leaving, I do wish to mention the problem of the search warrant which has been raised, and fairly raised, by Mr. Stanley.

And I would not seek to conclude my argument by failing to mention the subject.

As has been said before, the problem whether officers are required to obtain a search warrant where there is probable cause for an arrest is one which has produced manifest divisions of opinion among justices presently sitting on this Court, among justices previously sitting on this Court.

As we understand the law, as it obtains in the federal courts, Rabinowitz does obtain that the question is not was there time to get a warrant, but —

William J. Brennan, Jr.:

(Inaudible) an arrest warrant in Rabinowitz.

Gordon Ringer:

Yes, there was and that’s — I recall —

William J. Brennan, Jr.:

There was a search — but there was an arrest warrant.

Gordon Ringer:

I recall Your Honor’s statement in the dissent in Abel versus the United States that it was sanctioned only inferentially.

That is true.

William J. Brennan, Jr.:

Well, we’ve never actually decided the question (Inaudible) you’re now going to discuss, whether you need a search warrant, even if there is probable cause for it.

Rabinowitz goes no further, does it, in that it validates the search which was incident there to an arrest under an arrest warrant?

Gordon Ringer:

I believe there is.

Certainly, in Abel — I — here, I am trespassing on grounds of —

William J. Brennan, Jr.:

(Inaudible)

Gordon Ringer:

— that I perhaps should not.

Perhaps I should not and for obvious reasons, I shan’t.

Gordon Ringer:

But certainly, let me say this as a minimum, that it is at least California’s understanding of the Rabinowitz decision that it goes farther than Your Honor says it explicitly goes.

Let me phrase it that way in a non-contentious manner.

Now, let us assume that Trupiano were to be restored and Rabinowitz were to be overruled.

Waiving the question whether this would be a desirable result, I’m not arguing that from the federal courts because I do not think this could profitably argued as a question federal law at least without the appearance of Mr. Solicitor.

The question would arise whether, first, if Trupiano were restored, states would under the Due Process Clause be bound to follow it.

And second, where even under the facts here, sir, were Trupiano the law, whether this would be a Trupiano case, I submit it would not.

Because the exception in Trupiano was that a warrant, even where a warrant might be required, is required only where the obtainment of a warrant would be practical.

Now, if I may say this, it would not have been absolutely physically impossible if the officers have delayed entry into this apartment for the purpose of obtaining the warrant, it would’ve been not absolutely physically impossible.

But, the officers had tracked this man to the lair.

They knew he was selling from his apartment.

This was at the night time, 9 o clock.

Be it 9:30, would’ve taken the officers quite some time to find a Deputy District Attorney who could write an affidavit for them.

Police officers don’t, unless they are vastly experienced in such matters, write affidavits.

And the affidavit would have to be, not merely complex as the facts here are complex but sufficient to obtain not merely the approval of the magistrate but good enough to survive post-arrest attack upon the sufficiency of the affidavit to constitute probable cause for a search warrant.

Not only is that true, they then have to find a magistrate and Mr. Stanley has referred liberally to experience in the California Courts.

It’s just hard to find a Deputy District Attorney at that hour, harder to find a magistrate in cases other than this where the man is tracked to his lair in a completely unbuilt up area.

You know how large Los Angeles County is.

We’re 50 miles by 50 miles in both directions.

Your Honors have experienced this.

The difficulties would be inculpable.

It might be said, of course, that the officer could’ve left the man at the door.

But I think, and this has been mentioned in the Johnson case, the opium smoking case, they could’ve guarded the door.

It’s been mentioned in Jeffers, in 342 United States.

They could’ve guarded the door.

But what would have happened in this case if they’ve left someone to guard the door while the remaining officers went out to get a warrant?

Ker, as they knew, supplied out of his apartment.

Suppose one of his clients walked up to the apartment, what could that officer do?

If he attempted to block that man’s entrance, the man would go away and telephone Ker and within a few minutes, the officer would reasonably hear the sound of the disposal, the narcotics being disposed of.

And there would go the evidence the officers were out attempting to obtain a warrant for the purpose of security.

Now, in summary of our position, may it please the Court.

Gordon Ringer:

It is California’s view which we earnestly and sincerely maintain, that, notwithstanding the argument presented by Mr. Stanley, the question remains under Mapp versus Ohio, one of due process, that under the Due Process Clause, that California’s standards are reasonable and the finding based upon those standards are reasonable.

They should be upheld by this Court and should not be cast out.

It is likewise our position that as applied to the facts of this particular case, the officers, under the standards imposed under the federal courts as well as under the California Courts, have probable cause for the arrest of petitioner, George Ker.

As to Mrs. Ker, I rest upon what I said in the brief.

Respecting the entry, it is California’s position that it was lawful under the exception to the statutes engrafted by judicial decision.

And on this point, I may make this point, and I think it’s a valid one to make, that in Miller versus the United States, in 357 U.S., the Government explicitly refused to raise the question of exigent circumstances where there was an ambiguous attempt to gain entrance at the door.

So, I do not have against me, upon this point any case of this Court specifically examined in this —

William J. Brennan, Jr.:

Well, I wouldn’t impose, anyway, that our interpretation of the federal statute (Inaudible) —

Gordon Ringer:

No, this is a statutory —

William J. Brennan, Jr.:

What California Court has said of this statute is the California Court’s (Inaudible).

Gordon Ringer:

Yes.

I certainly do not retreat from that position, Your Honor.

William J. Brennan, Jr.:

Well, I don’t think Miller construes the federal statute at least, but rather this construes much more narrowly than apparently the California Courts.

Gordon Ringer:

Perhaps it did, but the point I mentioned Miller for is that this question has never even arisen here, though I’m grateful.

Byron R. White:

(Inaudible) — in a constitutional —

Gordon Ringer:

In a constitutional sense or the exigent circumstance exception hasn’t arisen here in any sense because the Government specifically refuse to raise it in Miller.

Citing Maddox as an example of that other States have a rule.

Respecting the search, it is California’s contention that the search was incident to the lawful arrest of petitioner, George Ker, that these convictions rest upon evidence obtained in violation and interrogation of no constitutional guarantee that under the findings of the trial court, as approved by the California Intermediate Court, and in consequence of rational reasonable standards, these convictions should be sustained.

Byron R. White:

Could you tell me if the —

(Inaudible)

Byron R. White:

Just tell me if your statute on executing a search warrant is similar to your arrest warrant statutes.

Gordon Ringer:

Yes, it is, Your Honor.

Byron R. White:

If you’re going to execute a search and take somebody’s home and the object of your search is the narcotics (Inaudible) the Court (Inaudible) the key in entering that?

Gordon Ringer:

Well, there’s only one case construing that.

That’s the case of Shelton in 151 Cal.App.2d.

Let me verify the citation by checking with our little compendium here.

Byron R. White:

(Inaudible)

Gordon Ringer:

Yes, it is.

That was an execution of a search warrant.

Hugo L. Black:

151?

Gordon Ringer:

151.

That’s the one case I know of.

Hugo L. Black:

What (Inaudible)

Gordon Ringer:

What?

Hugo L. Black:

What was the name of it?

Gordon Ringer:

Shelton.

Hugo L. Black:

Shelton?

Gordon Ringer:

Shelton.

And in that case, when they forced entry, I think they used a sledgehammer rather than obtaining the key.

They found the man in the process, I think it was a burning with it — burning the material that was the subject of the search warrant.

Byron R. White:

Of course, if no one’s home, I suppose, in executing a search warrant, you can go in to search.

Gordon Ringer:

I would presume.

Byron R. White:

And — but if someone’s home —

Gordon Ringer:

Wait a minute — wait minute — excuse me, Your Honor?

Byron R. White:

If someone is home, so far, the Courts really haven’t defined the scope of how the searcher may enter.

Gordon Ringer:

No.

No, though I say this.

It’s always to the advantage of the officer executing a search warrant to have someone home if only because Your Honor will recall in the record here, although this is collateral to the main point, that the officers were quite careful to have both petitioners here with them in every room where they searched.

So, there could be no question of them, say, seizing jewelry and making off with it.

And it would probably be to their advantage, under a warrant, to have a defendant home or the person whose premises were to be seized (Inaudible) precisely that purpose.

Byron R. White:

I just wondered whether it has been made clear under California law or in the cases as yet whether in executing a search warrant, officers are permitted to enter as they did here when people are at home.

Gordon Ringer:

Oh, I — pardon me, Your Honor.

I see the drift of Your Honor’s question now where I did not see it before.

1531 and 1532 are the — of the Penal Code are the — yes, are the relevant sections.

I would presume — excuse me.

Yes, 1531 is the relevant section on the execution of a search warrant and it is quite similar in language to 844 of the Penal Code which is the entry to arrest section.

I would assume, subject to correction by the California Court that the same — certainly, the same exceptions to the search warrant statute would be applied to the — to it as are applied to the arrest.

(Inaudible)

Gordon Ringer:

Yes, under the direction of the magistrate, the statute on this, 1533 of the Penal Code.

(Inaudible)

Gordon Ringer:

Yes, sir.

There has been a recent amendment, Your Honor.

This is a 1961 amendment.

Would Your Honor care for me to read it or simply to cite the 1533 of the Penal Code?

(Inaudible)

Gordon Ringer:

On a showing of good cause, therefore — it’s quite short.

On a showing of good cause, therefore, the magistrate may in his discretion, and search a direction in the warrant that it may be served at any time of the day or night.

In the absence of such a direction, the warrant may be served only in the day time.

(Inaudible)

Gordon Ringer:

I believe the — I believe 41 says the affidavits have to be positive or something, but then that means the same thing Your Honor.

Earl Warren:

Mr. Ringer, bearing on the question on whether they could’ve gotten the warrant, when did the police learn from Berman these facts about Ker?

What time of the day was that?

Gordon Ringer:

It was 8:45 PM, according to the testimony of Deputy Markman who was most observant of the officers.

Earl Warren:

I beg your pardon?

Gordon Ringer:

It was 8:45 PM, according to Markan who was the most observant of the officers at the point — on point of time that they got to the Fairfax and Slauson area.

It was 15 minutes later that this meeting had consummated.

That would put it at 9 o’ clock, if Your Honor please.

Earl Warren:

Yes.

Gordon Ringer:

Within 15 to 30 minutes after that, and the officer put a minimum of 15 and a maximum of 30, they had communicated to Berman what they had observed and also, in addition to what they had observed, the information they received from the Department of Motor Vehicles.

This is at the foot of page 24 of the record.

And it was presumably at that time that they learned from Berman what they — what he knew.

And the testimony here of Warthen following that, “Did you have a conversation concerning Mr. George Ker?”

And I can imagine the rhetorical emphasis in which he said, “Yes, sir.”

Then, immediately following this and this had — put it at 9:30, 9:15 to 9:30, they went to the apartment.

Potter Stewart:

Mr. Ringer, you have indicated the —

Gordon Ringer:

Yes, Justice Stewart?

Potter Stewart:

The difficulty because of the size of Los Angeles County and the unavailability of the appropriate magistrates.

The difficulty in warrants, either arrest warrants or search warrants.

Are there any figures available as to how many — in how many cases of arrests are made with warrants and how many without warrants in that county, and same as to searches?

Gordon Ringer:

I have no figures whatsoever as to arrest warrants.

Gordon Ringer:

With respect to search warrants, the only information I was able to obtain is contained in a footnote in an article which we refer in some detail in our brief.

It’s the article by Professor Collins.

He — the footnotes to an article in the Cal Peace Officer, a statement that since about 1933, there are, if I am correct — if I quote him correctly, there were issued somewhat between 500 and 600 search warrants in Los Angeles County.

That’s all the information I’ve got.

Earl Warren:

Since 1933?

Gordon Ringer:

Yes, yes.

Potter Stewart:

500 or 600.

Gordon Ringer:

Yes.

Potter Stewart:

Over a 30 —

Gordon Ringer:

Yes.

Potter Stewart:

Almost a 30-year period.

Gordon Ringer:

Yes, but I have no statistics as to whether this increased or decreased since Cahan.

And that’s all the information I’ve got on this subject.

Potter Stewart:

And there undoubtedly were thousands, literally thousands and thousands of searches.

Gordon Ringer:

Oh, yes.

I regret that I am at the present moment unable to be further informative.

But that’s all I have at the moment on that subject.

I’d be delighted to conduct further research for Your Honor, if you wish, but that’s all I could find statistic-wise.

Potter Stewart:

Thank you (Inaudible).

Gordon Ringer:

May I make one point.

I think this is essential to make, certainly respecting arrest warrants.

That the California have permitted the police officer to arrest without warrant for felony for a much longer time than the federal statutes have permitted narcotics officers to arrest without warrants.

7607 of Title 26 is an awfully recent statute.

Potter Stewart:

And of course, your law, your case law, and your statutory law, up until 1955, are now directing various search warrants.

You had the non-exclusionary rules so there was no incentive at all to get a warrant.

Gordon Ringer:

And there’s — oh, there’s another awfully important point which I’m glad I recalled it as the hour is approaching lunch time.

It is the policy of the California Courts to encourage search warrants.

With this respect, I would like to cite the case of People versus Keener in 55 Cal.2d.

Potter Stewart:

Is that in your compendium?

Gordon Ringer:

Yes, that’s in our compendium.

Potter Stewart:

How do you spell Keener?

Gordon Ringer:

K-E-E-N-E-R.

Yes, yes, it is the California policy —

Potter Stewart:

It is the California policy.

Gordon Ringer:

— that was (Inaudible)

Potter Stewart:

Yes, yes.

(Inaudible)

Gordon Ringer:

Yes, as well of course, as the philosophy of Cahan to encourage warrants.

I wish in absolute conclusion, simply upon the general question of the cons — of the standards to be applied to the states in California, to cite a law review article by Justice Treanor of the California Supreme Court.

This article was discovered by us too late to include in our brief, but I would like to cite it, it’s called Mapp versus Ohio at Large in the 50 States by Justice Treanor of the California Supreme Court.

It’s contained in the summer issue of the Duke Law Journal.

Earl Warren:

Which law journal?

Gordon Ringer:

Duke, Duke University.

Earl Warren:

Duke?

Gordon Ringer:

The pagination, it starts at page 319 thereof.

John M. Harlan:

(Inaudible) the number of the volume, (Inaudible)

Gordon Ringer:

It says Volume 1962, Summer, Number 3, at page 319.

Arthur J. Goldberg:

What was that page?

Gordon Ringer:

The article commences at 319, Your Honor.

It is therefore respectfully requested, if Your Honor please, that the judgments were — with which review is sought from this Court be affirmed.

Earl Warren:

We’ll recess now.

Mr. Stanley, you may proceed.

Robert W. Stanley:

Mr. Chief Justice and may it please the Court.

I only wish to point out two matters.

First, with respect to the beginning of the argument for the respondent, in effect, making this a moot question before the Court.

There was a motion made at the very beginning of this case when it was tried, much like a motion to suppress the evidence at page 16.

The ruling is at page 44 of the transcript at the very bottom of the page and incidentally, it’s true that the — that Exhibits 2 and 3 were not specifically discussed.

However, the ruling came right in the middle of the testimony and a reading of the — of this probable cause hearing will disclose that the judge was rushing it along all the way through.

And he said at the bottom of the page after he discussed — that he didn’t think that Mr. Black’s testimony would have much significance, so far as the defendant’s preparing the case is concerned.

He says (Inaudible), “I think I have listened very patiently to this testimony and the Court rules that there is sufficient probable cause to proceed in this action”, and that was —

Earl Warren:

(Inaudible)

Robert W. Stanley:

That was based upon his listening to evidence.

On page 16, the motion was first made.

Apparently, the Court was apprised either outside of the record or — it’s not disclosed in the record of what the nature of the motion was.

Page 16, however, the defense counsel stated, “Well, for the purpose of the record, then I move that the probable cause hearing be conducted outside of the presence of the jury.”

Then, they proceeded to litigate that issue, and the prosecutor at that time stated, “If the Court wishes, I’d place my officers on the stand to show there was probable cause.”

(Inaudible)

Robert W. Stanley:

They were put on the stand at that time and —

(Inaudible)

Robert W. Stanley:

Between pages 16 and pages 45.

(Inaudible)

Robert W. Stanley:

Yes, all of that testimony is in there.

(Inaudible)

Robert W. Stanley:

That’s correct.

This is much like a motion to suppress.

It concerns the probable cause and I think the more reasonable assumption is that — well, it’s not stated whether probable cause was with relation to arrest or the search or both, that it was made with respect to all of the evidence and not any particular one item of evidence before the Court.

Mr. Stanley, (Inaudible)

Robert W. Stanley:

That’s correct.

(Inaudible)

Robert W. Stanley:

That’s correct.

(Inaudible)

Robert W. Stanley:

Correct.

I don’t think there’s any question about that.

And during the course of the trial, when the exhibits were offered, having already — the Court, already having ruled upon the issue of whether or not it was going to receive them, I don’t think it was at that time incumbent upon the defense counsel not to object.

(Inaudible)

Robert W. Stanley:

Should give any effect —

(Inaudible)

Robert W. Stanley:

I don’t feel that the probable cause hearing was sufficiently definite as to what the Court was determining.

I think it’s obvious from reading it that it wasn’t explicit as to whether they were discussing an arrest or a search or both and he found that there was probable cause to proceed, and then followed that by stating, “If there’s any injustice being done, I can always dismiss the information.”

And–

(Inaudible)

Robert W. Stanley:

I did not try this case.

No, I didn’t.

(Inaudible)

Robert W. Stanley:

No, he did not.

He just stated very well.

It was at the conclusion of the day and the following day, the jury trial began.

(Inaudible)

Robert W. Stanley:

He ruled that the evidence was admissible, correct.

(Inaudible)

Robert W. Stanley:

And that it should not be suppressed.

(Inaudible)

Robert W. Stanley:

That’s correct.

Potter Stewart:

And then, as the evidence was introduced, you did not make any further objection but are you rather — the defense counsel did not make any further —

Robert W. Stanley:

The defense counsel did not make any further objection as the evidence was introduced during the time of the trial.

Potter Stewart:

Because there’d already been a ruling and he had presumably saved these exceptions to —

Robert W. Stanley:

Correct.

In fact, the exhibits were not even marked for identification at the time of the probable cause hearing.

They weren’t marked until the beginning of the trial when the chemist was warned.

William J. Brennan, Jr.:

Was there any question, Mr. Stanley, under California practice that, having had the ruling in the probable cause hearing, there was no requirement that defense counsel may further (Inaudible)

Robert W. Stanley:

I don’t believe that is the law.

I don’t believe that after — the reason this is difficult to answer is because normally, these 995 motions are made some time before the trial but usually made before a plea has been entered.

And at the time of the trial, an objection is generally renewed, although it’s not argued again.

In this case, for some reason, it was made at the time of the trial.

Thank you.

Hugo L. Black:

May I ask you just one question?

(Inaudible)

Robert W. Stanley:

I’m sorry.

I didn’t understand.

Hugo L. Black:

(Inaudible) there was probable cause in making the arrest under the federal standard of probable cause.

Robert W. Stanley:

I think that’s one of the issues.

The other is whether there was probable cause to search the apartment or whether the search was unreasonable —

(Inaudible)

Robert W. Stanley:

Whether the search was a reasonable search under the federal rules.