Kremen v. United States

PETITIONER:Kremen
RESPONDENT:United States
LOCATION:Quality Photo Shop

DOCKET NO.: 162
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 353 US 346 (1957)
ARGUED: Mar 06, 1957
DECIDED: May 13, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – March 06, 1957 in Kremen v. United States

Earl Warren:

Number 162, Shirley Kremen, Samuel Irving Coleman and Sidney Steinberg, Petitioners versus United States of America.

Mr. Leonard.

Norman Leonard:

Mr. Chief Justice, members of the Court.

This case is here on certiorari to review the judgment of the Court of Appeals for the Ninth Circuit which had affirmed judgments of conviction rendered at the jury trial in the District Court in Northern District of California against the three petitioners here.

The petitioners who before the Court are as the Mr. Chief Justice has just indicated, Shirley Kremen, Samuel Coleman and Sidney Steinberg.

Originally, if the Court please, there were five defendants in this case.

These three petitioners and two others, one Patricia Blau who was acquitted at the end of the government’s case by the district judge and one Carl Ross who was found guilty, but who being unable to raise the bail that was required of him on appeal has served his sentence and so no longer a party to this proceeding.

In that connection, I might say that some of these other petitioners also have served portions of this sentence because of the difficulties that they had in raising bail, but subsequently, they did raise bail and they are now out but there are still substantial portions of the sentences remaining to be served.

So that no sentence in this case is moot.

But petitioner Kremen was able to raise her bail initially so she still has her full sentence ahead of her.

The indictment which was returned is in four counts and it charged in the first count that when Robert Thompson had been convicted of conspiracy to violate the Smith Act in New York in 1949, parenthetically, I might observed that Thompson was one of the defendants in the Dennis case which was ultimately affirmed in this Court.

And that first count continued to charge that all five of those named defendants, that is three petitioners here and the two others who I mentioned, were accessories after the fact to the Smith Act conviction in 1949 in New York.

It was alleged that they were accessories after the fact in 1953 in California.

I might also say parenthetically here that we do not concede that count one properly stated the offense for which Thompson was convicted.

I will come to that point later.

That’s one of the points on certiorari.

Here I simply wish to summarize the indictment with the Court as a prelude to the argument.

The second count of the indictment alleged that all five of those defendants, three petitioners here and the two others, conspired to violate the accessory after the fact statute.

In other words, it was a conspiracy to commit the offense which was importantly described in the first count of the indictment.

The third count of the indictment charged that all of the defendants except Steinberg, that is the remaining four knowing that a warrant had been issued for Steinberg’s arrest, harbored and concealed him contrary to the provisions of the harboring statute.

Incidentally, I might observe that the warrant for Steinberg’s arrest was in the proceeding in New York which later became known as United States against Flynn which Mr. Justice Harlan sat and the case was in the Second Circuit.

The certiorari was denied here, the so-called the second string Smith Act cases in New York.

There was a warrant up for Steinberg.

He was found to use later in California and was alleged that these people had harbored.

And the fourth count, the last count of the indictment alleged that all four of these defendants conspired to harbor Steinberg.

So it was a conspiracy charge to commit the subsequent offense set forth in the third count of the indictment and in that conspiracy charge, Thompson was named as a co-conspirator but not as a defendant.

After the indictments were returned, various pretrial motions were made attacking their sufficiency, seeking particulars and other forms of pretrial discovery.

Those motions were all denied.

I think more important for the argument today that should be noted.

But after the indictments were returned, motions seeking the suppression of evidence allegedly illegally obtained at the time these petitioners were arrested were also, those motions were supported by affidavit.

Norman Leonard:

They appear on the record.

The affidavits appear in the record.

Pretrial hearings were held on motion to suppress and testimony was taken.

Those motions were denied.

At the time the evidence which we claimed was illegally seized was tendered on the trial, motions to suppress it were renewed and objections to the evidence were made on the ground but it was illegally obtained in violation of the guarantees in the Fourth Amendment.

The motions to suppress were denied and the objections were overruled.

While initially while I’m on the subject of evidence, I think this should be mentioned.

Much of the evidence that was received by the trial court was offered and received against an individual defendant — the specific defendant with whom there was some apparent connection with a particular item of evidence.

Before the case went to the jury, the Government moved that all of the evidence be received against all of the defendants and that motion was granted and it was that posture of the evidence that the case went to the jury.

At the conclusion of the Government’s case, motions of the judgment of acquittal were made and as indicated were granted only as to the defendant Blau that was denied —

Felix Frankfurter:

Is that one item in your case that the evidence was not admissible as to all?

Norman Leonard:

Yes, Your Honor and it is particularly significant on the question of the search and seizure because as I understand the Government’s position, it seeks to segregate some of this evidence and says that these petitioners were here before the court today may not complain if evidence that was illegally obtained from somebody else was received.

We think it’s significant —

Felix Frankfurter:

I don’t follow that.

Norman Leonard:

Well —

Felix Frankfurter:

I want to know whether evidence which the court allowed in as to all defendants is made by your claim that it should have been restrictively —

Norman Leonard:

Yes, Your Honor.

Felix Frankfurter:

All right.

I don’t see what — what your other claim — how that other claims —

Norman Leonard:

Well perhaps —

Felix Frankfurter:

— invalidates what was otherwise admissible.

You may have a good point on —

Norman Leonard:

Yes.

Felix Frankfurter:

— search and seizure.

Now on constant, is there an admissibility?

Norman Leonard:

I appreciate that Your Honor, perhaps it will become clearer or I’ll try to make them clear as the argument develops.

After the jury was out — it was out for some substantial period of time, nine hours and reported an inability to agree on some counts at least and a verdict then have to some further instructions and return a guilty verdict against all of the defendants on all of the counts.

The motions in the rest of judgment for new trial and a renewal of the motion for judgment of acquittal were all made and denied.

Felix Frankfurter:

Perhaps if you’ll state what — without arguing of course, what the claims are that you’re making?

I wouldn’t be asking specific questions such as whether there’s any complaint about the charge.

Norman Leonard:

I — well, Your Honor, yes, I was going to outline the background of the case and then come to the questions presented by the writ.

But let me — let me do that now and then go back.

The questions which we presented by the writ and the writ was granted without any limitation are substantially these.

Whether the search of the premises which was occupied by the petitioners at the time of the arrest and the seizure of the books, papers, documents and other evidence that was so seized there were in violation of the Fourth Amendment whether or not the introduction of the evidence so seized was in violation of the Fifth.

The second point on the writ was whether or not the relevant sections of the criminal statutes involved were unconstitutionally applied to these petitioners.

There are certain sub-points in that regard.

And the third question presented by the writ is whether the indictment, at least the first count of it, stated an offense and whether or not there was a variance between it and the proof whether the trial judge’s charge is correct on that issue.

And again, that is a matter which I would like to develop when I get to that point of the argument.

(Inaudible)

Norman Leonard:

Yes, Your Honor.

We argued that primarily as an incident to the search point.

That’s — that’s correct, Your Honor.

At the — after the verdict’s return, sentences of varying lengths were imposed upon the petitioners and the cases of two of them, Coleman and Steinberg.

Those sentences were consecutive so that the Court is faced with the problem of examining the — each of the individual counts in those cases because we don’t have the situation.

We have concurrent sentences and it can be sustained on one count, that’s the end of it, because here we have this reversed situation.

And in the case of Kremen, although the sentences were concurrent, the sentence on the first and second count of the indictment was a one year sentence.

Our position which I will develop a little bit later on the argument is that at most there was an act of harboring here.

The statute on the harboring count permits a maximum sentence of only six months and so we contend that despite the fact that the sentences were concurrent, there was no warrant for the one year sentence under the accessory count because all we have here we say is an act of harboring which is a misdemeanor with a six-month sentence.

Felix Frankfurter:

I — I should have in alert but I wasn’t.

But they — did the jury bring in a verdict on all four counts?

Norman Leonard:

Yes, Your Honor.

Felix Frankfurter:

And all four counts survive the verdict he sentenced, is that right?

Norman Leonard:

Yes, Your Honor.

Felix Frankfurter:

All right.

Norman Leonard:

When the case got up to the Court of Appeals, that Court affirmed the judgments below, the judges writing three separate opinions.

Chief Judge Denman dissented and Judge Haley wrote a brief concurrence to the rather lengthy opinion of Judge Lemmon..

Those opinions of course are printed in the record and they also for the convenience of the Court are printed as an appendix to our petition for certiorari as it is required by the rule.

I’ve already stated to the Court what the questions are that are presented by the petition to certiorari and which are before the Court today.

Now before discussing the legal principles involved, I think I should turn briefly to the facts that we believe are relevant to the search and seizure.

I separate my discussion of the facts because I believe the law to be that the Court may only consider when it is concerned with the search and seizure point and the arrest point which we raised in a manner I indicated to Mr. Justice Harlan.

Norman Leonard:

The Court may only consider the evidence that the officers knew at that time, an evidence which was subsequently developed, of course is not relevant on the question of validity of the arrest of the search and seizure.

So the evidence which was known as far it’s revealed by this record, at the time that the arrest and the search and seizure took place was this, that four of these original defendants, three petitioners who were here and Ross were arrested shortly after 1 o’clock in the afternoon of August 27th, 1953 at a cabin or a house in Twain Harte, California.

Twain Harte is a small summer resort town near Sonora, California and the Mother Lode country in the foothills of the Sierras.

At the time that those four were arrested, there was also present on the premises, Robert Thompson, a defendant from the Dennis case.

Patricia Blau, the other defendant was arrested later in the day at a different place apparently arrested from some leads that the government agents obtained when they went through the — premises of Twain Harte.

The fact that she was arrested later I think is enough for us to — to pass over her arrest because certainly nothing that the officers learned when they arrested her five or six or seven hours later but retrospectively so to speak, justify the arrest at 1 o’clock in the afternoon so we have to go back to that situation I think.

Now, this record reveals and I think it’s undisputed that for some period of time prior to these actual arrests, these agents had the petitioners under some substantial surveillance and that they’re very carefully prepared these arrests.

The record shows that agents who had their headquarters in New York City had arrived in San Francisco at least two days before the arrests to participate in it.

And other agents from the San Francisco area had gone up to Twain Harte at least two days before the arrest or participate in the arrests.

Now one of them had actually gone to the premises the day before with an employee of Pacific Gas and Electric Company.

The agents sat on the truck while the employee went on the premises on a pretext in inspecting a light meter or gas meter or something in the agents premises.

Also, when they came out the next day they brought with them a (Inaudible) apparently aware of the fact that there was a female on the premises and they were going to arrest her.

Now, how much longer than the two or three days that the record reveals, the agents were actually engaged in preparing for this arrest, or how much longer they had these petitioners under surveillance is not revealed by the record for the reasons that although we sought this information both on the motions to suppress on the trial itself, the trial judge precluded us by his rulings to sustain government objections by finding it out.

And he wouldn’t let us go beyond the point when the agents left their headquarters to proceed.

How much else there was?

We do not know.

But we do know this that the arrests were carefully prepared.

A continued surveillance was maintained for at least eight hours prior to the time of the actual arrest.

Agents were stationed around the cabin.

They maintained an elaborate communication system with their headquarters and walkie-talkie setup so they could report to their headquarters what was going on.

It’s interesting to note that all the reports they made indicated nothing but normal activities that one would expect in a — in a summer resort area.

Thompson was seen to come out practicing fly cast.

Other people were walking round the premises.

Somebody was sitting down at the table outside the building and probably drawing or writing and Mrs. Kremen came out in the middle of the morning apparently and hang up some laundry.

By noon of that day according to the agents, they satisfied themselves with two of the people that they have under observation were Thompson and Steinberg.

They said they have some difficulty at first because there were — there was substantial change in appearances.

Thompson didn’t look like he had look when he was in New York a couple of years earlier when they had known him.

Steinberg had to put on some weight, but they satisfied themselves that these were the men that they were looking for.

They relayed this information to their superiors and were told to standby to assist a raiding party and that was their own characterization of what it was, a raiding party that would come up in effect the arrest.

And about 1 o’clock in the afternoon, something like 15 agents with the matrons swoop down on the cabin.

Norman Leonard:

And at that moment, Thompson and Steinberg were outside the cabin about 40 or 50 feet away from them.

They were immediately taken into custody and they were advised that they were being arrested for the Smith Act violations on the outstanding process.

There was no show of resistance by them.

No attempt to flee.

No weapons of any kind were found.

No weapons of any kind were found in any place on anybody.

The others, Ross, Coleman and Kremen were inside the cabin.

The agents were sent to the cabin and ordered them out.

At this point, I should like to say this that in the briefs, both sides, the Government and us have assumed that the arrests of those three, Ross, Kremen and Coleman took place inside the cabin.

However, a more careful reading of the record I think convinces me that I was in error in making that assumption in the brief.

And I think the record doesn’t justify an assumption that those three were arrested inside the cabin.

I don’t want to labor this point because our case doesn’t turn on it of course, but I do think that the Court should know and I’d like to direct your attention specifically to page 101 of the record.

It appears in the first volume where — when the agent in charge of the operation was being interrogated on the pretrial proceedings on the motion to suppress and his attention was specifically directed to what happened with the three people inside the cabin.

He says — I don’t think I need to read it to the Court at page 101 of volume 1 — volume 1 of the record at page 101.

The Court will see he says that they were taken outside and advised that they were being under arrest and specifically the question is asked in the middle of page, “When was that?

While still in the — in the house or after you had taken them outside?”

Answer “While they were all outside.”

And then counsel restates it, “Is this correct, that you found the other three defendants in that house?”

“You gave orders because they’re taken outside?”

And outside they were told that they were under arrest for the reasons you indicated?”

“Yes sir.”

And were they handcuffed?

They were all then handled.

So, I think this is circumstance as I say our case certainly doesn’t turn by any manner it means.

But I think it’s a circumstance to be considered in assessing the reasonableness of the subsequent search that the arrests of these people, two apparently even occurred outside of the cabin.

But in any —

Felix Frankfurter:

Mr. Leonard, are the pretrial proceeding before trial the same judge has subsequently tried?

Norman Leonard:

There were two sets of these pretrial proceedings were.

The ones that I just made reference to.

There was one proceeding on the affidavits that were submitted in support of the motion to suppress, that was before Judge Murphy — District Judge Murphy.

Norman Leonard:

Subsequently, when the actual hearing on evidence — the introducing of evidence took place that was before Judge Goodman and he was the judge who often tried the case.

Felix Frankfurter:

Would you mind unless it takes too much to give me some dates.

The arrests were early in August 1953.

Norman Leonard:

August 27th, 1953.

Felix Frankfurter:

When — when did they come?

When did the case go to trial?

Norman Leonard:

I’ll have to examine — it was in April —

Felix Frankfurter:

Don’t take time if it — what?

Norman Leonard:

April of 1954.

I don’t —

Felix Frankfurter:

April 1954.

How long did the trial take?

Norman Leonard:

Two weeks.

Felix Frankfurter:

Two weeks.

So that it was through by middle of May and —

Norman Leonard:

Well, late April or early May.

Felix Frankfurter:

May.

And when did it get to the Court of Appeals?

Norman Leonard:

I don’t recall when the record was docketed, Your Honor, the decision of the — then it was argued and briefed of course and then the decision of the Court of Appeals appears in January of 1956.

It was argued —

Felix Frankfurter:

Although the trial was finished in April of 1954?

Norman Leonard:

That’s right sir.

It was a pretty extensive record and the problems of getting it printed and getting it —

Felix Frankfurter:

Well, I’m not — I just want to know what the facts are —

Norman Leonard:

I mean that’s — that’s — that was it.

And as I indicated earlier although it may not directly relevant during some of this time, some of these people were in jail unable to raise bail but ultimately except for Ross they all did raise it and are now out and have substantial portions of their time yet to serve.

In any case, now we have all the people outside the cabin and in custody and then the search of which we make our principal complaint took place.

Now, I think that the best way to describe the search of the Court is not my own words but without reading at any great length to direct the Court’s attention to the transcript again at same volume at page 209.

Beginning at page 209 and running on for about four pages to page 213 where the agent who made the search is testifying and this too was on the — no.

Excuse me.

Norman Leonard:

This was not on the pretrial motion to suppress.

Now, this — this — this is — is on the trial itself.

Mr. Ericson testifies, “Then I went into the house.”

And this is very significant.

In order to see what there was relating to this matter.

That was his purpose.

He didn’t go into house for some specific narrow purpose but in order to see what there was relating to this matter.

Maybe he’s going to look for anything he could find relating to this matter and that’s precisely what he did as the remaining pages will show.

He says, on page 210 that he entered through the kitchen and he describes what he found there, then he went into the dining room or the dinette and tells what he saw there.

On the table were two boxes and in the next paragraph he says, “The large box contained the mimeograph machine.”

And then the other box was stencil copies and paper, ink and silk.

Then after leaving the kitchen, the dining room, he proceeds into the living room.

He notices what furniture he saw there and he notices that there was a desk.

Under the desk, at the top of page 211, it was a typewriter.

And in the desk at the top of page 211, there were also many papers.

From there he goes on upstairs and he climbed the stairway at the head of the closet — at the head of the stairway.

He opens the closet.

He finds a box in it.

It contained numerable types of papers of various types, I come through the papers.

Then he goes into other bedroom.

And the same thing is repeated.

In the bedroom, he finds a suitcase which he obviously must have opened with several documents in it and papers.

At the foot of the bed were three cardboard boxes, all containing papers which I looked through.

On the bed was a briefcase, it was quite filled with papers and documents.

Also, there was a suitcase and it too contained documents.

There was in — on the dresser, he found a cardboard box containing documents, a briefcase containing papers and just on top of it was a pair of keys.

And that pair of keys is also significant in this case.

Then, he goes to the other bedroom which apparently was the ladies bedroom.

It contains ladies clothing and there he finds nothing but a typewriter.

He then goes back downstairs.

Norman Leonard:

He finds some sleeping bags out on the porch and there are two automobiles outside and he looks through the glove compartment of the automobiles and finds registration and identification papers and the Court will note that at that point when he gave this testimony of this long rambling search, I move to strike that testimony on the ground that there wasn’t any showing of any process that ever been issued before it and the motion was denied.

Then he testifies on page 213 that he reported to his superior what he had seen and it’s interestingly the emphasis is there on page 213 principally mentioned the documents in these various boxes and suitcases.

That’s what they’re interested.

And he was instructed by the agent as he testifies to prepare to take the material all back to San Francisco.

He did, they loaded all this material in automobiles and took it back to San Francisco.

Felix Frankfurter:

Now (Inaudible) what appears — from what appears on 213 as I have no more to go on in that, I wonder what the agent can point out the general things I had observed.

Again, one say with any confidence that he had or had not by that time take in possession.

Norman Leonard:

I would say —

Felix Frankfurter:

That’s what I have observed —

Norman Leonard:

— I would say —

Felix Frankfurter:

— I’m not speaking in the back of the word but I just —

Norman Leonard:

Well, I would cite my reading of the whole page, Mr. Justice Frankfurter that he had taken physical possessions and essentially put them on the automobile because he goes on to say that he was principally interested in (Voice Overlap) —

Felix Frankfurter:

He asked for instructions, didn’t he?

Norman Leonard:

He asked for instructions and his superior said, “Well, go ahead and take them and bring them back to San Francisco,” which he did.

Felix Frankfurter:

Well, he had the Government on that but as one entitled to infer that up to that time, he had not taken possession, he had not taken in control because he wanted to get instructions whether or not to take control?

Norman Leonard:

One might make that inference —

Felix Frankfurter:

But I — I just —

Norman Leonard:

One might make it.

I —

Felix Frankfurter:

I’m not —

Norman Leonard:

— respectfully submit that it’s not material because whether he had —

Felix Frankfurter:

Maybe not.

Norman Leonard:

— taken it at that point or took it a minute later pursuant to the instruction —

Felix Frankfurter:

It maybe immaterial to one of the pieces as I do about these questions, namely, if there’s time to get a warrant, he should get a warrant.

Norman Leonard:

Well, you have a point there sir that I overlooked.

Felix Frankfurter:

Thank you very much.

Norman Leonard:

Perhaps — perhaps what he — he should have done was he so advised his — his superiors to what he had seen.

The people were in custody.

There were plenty of agents there to — to have — one of them stand guard and — and he might very well at that point have said, “Let’s get down and get the warrant now, because now we see what there is.

They could have described it and so on.”

Norman Leonard:

But that was not — that was not done of course and what was done is what the record reveals that he was instructed to return all — to take this material to San Francisco without process — without process.

And he — he did so.

Felix Frankfurter:

This is at 1 o’clock in the afternoon?

Norman Leonard:

This was shortly after 1 o’clock in the afternoon.

And the arrests I believe —

Felix Frankfurter:

I mean during — during — during ample office hours with any administrative officials or any —

Norman Leonard:

Yes, sir.

Felix Frankfurter:

— judicial officers?

Norman Leonard:

Yes sir.

I think that the agent testified that the arrest action took place at 1:04 to make it precise.

Now we have set forth in — in our brief a list of the places where United States Commissioners maintained their offices in and around that vicinity.

Felix Frankfurter:

I understand.

What is the result —

Norman Leonard:

I think the nearest (Voice Overlap) — the nearest one is either stocked in the Modesto, California 50 or 60 miles away.

Of course —

Felix Frankfurter:

Is this a permanent U.S. Commissioner?

Norman Leonard:

Yes, sir.

Felix Frankfurter:

At Stockton.

Norman Leonard:

Yes sir.

Felix Frankfurter:

He’s on duty?

Norman Leonard:

Yes sir.

The — the commissioner —

Felix Frankfurter:

Expected to be on duty also?

Norman Leonard:

Yes, sir.

Well, the Commissioner Stockton was the one before whom the defendant Blau who is not in the case was arraigned when she was taken in.

During a pre — first the pretrial proceedings we did get one bit of relief.

Judge Murphy directed the Government that furnishes with an inventory of what had been seized.

That inventory took — it took 25 single space typewritten pages for the Government to prepare such an inventory and for the convenience of the Court, we have appended that inventory as an appendix to our opening brief.

The Court will examine the appendix to our opening brief, you will see some 24 pages, one page less than printing than in typing, of the most detailed kind of material that was seized during this raid.

We think —

Felix Frankfurter:

I missed something.

That inventory was taken by whom at what time.

Norman Leonard:

By the FBI, by the agents subsequent to the arrests.

Felix Frankfurter:

You don’t know when?

Norman Leonard:

No, we don’t know when but we do know that unless it appears at data, I don’t think it does, no.

But during the pretrial proceedings Judge Murphy ordered that a copy be furnish to us and it was and that’s how you obtained it.

You had a question.

William J. Brennan, Jr.:

What — what — what part of this was used in —

Norman Leonard:

Well, I — I will come to that.

Of course much of it wasn’t used beginning at page 18 of our — of the inventory that is in the appendix.

You will note — the court will note that beginning of the reference in these pages from — papers from the Chevrolet, package of papers and so on.

That were list of —

Hugo L. Black:

What was done by them — you mean they took it away?

Norman Leonard:

Yes, Your Honor.

They took it to San Francisco.

Hugo L. Black:

All these list?

Norman Leonard:

Yes, sir.

And except for some personal items and except for the automobiles they had not yet been returned.

Felix Frankfurter:

Well that — that — the item indicated on this inventory transcend us the compendious description of what he saw on page 213?

Norman Leonard:

Oh, yeah.

Well, I — I — neglected one thing Your Honor that again he testified later and I don’t think I need to further it all with the record references that he talked to the realtor.

This cabin was rented as a furnished cabin and he got the realtor apparently later that day, as near as we can ascertain in the record.”

I went through the premises with the realtor and took everything.”

That was his language.

“Everything saved that which the realtor identified as belonging to the cabin, as going with the furniture.”

That accounts for the books to close, the briefcases, the items of furniture et cetera which the realtor said, “Well, that doesn’t belong to me.”

That’s what these people brought in.

So, he went through the cabin in the absence of the —

Felix Frankfurter:

So the realtor couldn’t have given consent to articles over which he had no concern?

Norman Leonard:

Oh, no.

Norman Leonard:

And — and the record is clear that the — these premises were at least by Mrs. Kremen and that the rent had been paid up.

They were in lawful possessions.

No questions about — about that.

William O. Douglas:

I don’t — I still don’t understand what was introduced.

Norman Leonard:

Your Honor, let me — let me come to that.

Not all of these evidence was introduced of course.

William O. Douglas:

No.

Norman Leonard:

I might say that a good deal more was offered than was introduced, the trial judge excluded a lot of evidence on the ground that it wasn’t prohibitive or in his view wasn’t prohibitive or wasn’t relevant or it wasn’t properly connected up with one or more than the defendants.

That evidence which he thought was relevant, was prohibitive, and was connected up with the defendants, precisely the evidence that would damage them.

He permitted to go in —

Felix Frankfurter:

Out of the legality of the search?

He went against it?

Norman Leonard:

Exactly.

Felix Frankfurter:

Then he rule on relevance.

Norman Leonard:

That’s exactly right, sir.

Now what was introduced was — was this.

Directly used against these petitioners were papers indicating that they were operating under false identity, Social Security cards, driver’s licenses, fishing licenses and things of that kind shows that they established the false identity.

The two keys that I mentioned were introduced in evidence and it’s perfectly apparent from this record that those keys — automobile keys were later used because they called the locksmith to testify to trace back to an automobile from which it was established that the petitioner Coleman had driven Thompson various points around the country.

The — that evidence was obviously the fruit of those keys.

Two notebooks — three notebooks, Exhibits 26, 27, and 28 in this record were introduced showing various kinds of meetings, contacts between people, all of which would indicate some kind of conspiracy as the Government put it in the — in the underground.

That evidence was introduced against them.

The Government argues that some of this testimony was taken from the persons and therefore a different rule should apply.

In that regard, I think that whatever may have been the case with respect and to the persons now before the Court, that situation will not cure what happened here.

As far as Coleman is concerned as we pointed out in our briefs, he was wearing nothing but a pair of swimming trunks at the time and nothing was taken from this person.

As far as Steinberg was concerned, some documents were taken from a wallet and it’s very interesting the way that the Government says they were taken from his purse.

This wallet was in the house.

After the arrest, the agent said to the people, “We’re going to have to take you down to San Francisco to arraign you.

Will you go in and get whatever clothes you want, because they were wearing summer clothes in this resort community.”

And Steinberg picked up a pair of trousers and had a wallet there.

And the agent said, “Is that your wallet?”

Norman Leonard:

He said, “Yes.”

And then the agent grabbed and took it.

Now, I don’t concede that that’s taken from the person of — of the defendant at the time he’s arrested the same thing with the respect —

Felix Frankfurter:

Is that introduced?

Norman Leonard:

Excuse —

Felix Frankfurter:

Anything in that wallet was introduced?

Norman Leonard:

Yes, sir.

Felix Frankfurter:

All right.

Norman Leonard:

Yes, sir.

The documents establishing his false identity and the same thing is true of the purse from which documents involving the petitioner Kremen were taken.

She was told to go in and get what she needed for the trip to San Francisco, primarily she picked up the purse and the agent took it from her.

Felix Frankfurter:

Could that have wallet have been taking on an appropriate search warrant or could a search warrant is inappropriate so he can take that wallet?

Norman Leonard:

To take that wallet possible, possibly, I think it would be questionable.

Our position overall here is —

Felix Frankfurter:

Well assuming — assuming the evidence was relevant and my question presuppose to that.

Norman Leonard:

Yes, I understand that.

I think it’s a close question whether a search warrant could —

Felix Frankfurter:

How many of these things that were taken under the implied power on which this rest?

How many of these things could as a matter could have been seized under an appropriate search warrant or could there have been an appropriate search warrant?

Norman Leonard:

I think there could have been an appropriate search warrant not for this search.

I think a search warrant in the terms of the amendment specifically describing the articles to be seized could have issued.

I think they could have gone down as was suggested Mr. Justice Frankfurter to the Commissioner and said we’ve gone through these premises and we find — at the time of the arrest and we find thus and so and we think that these cards, these items, these things are — we have probable cause to believe that they maybe —

I believe they could have gone through the whole house.

Norman Leonard:

Well —

(Inaudible)

Norman Leonard:

I’m not sure of that.

(Inaudible) that search warrant?

Norman Leonard:

I’m not sure.

I’m — I’m not — I’m not sure.

Felix Frankfurter:

That’s what in my —

Norman Leonard:

I think we have too look at —

Felix Frankfurter:

That was my presupposition.

Norman Leonard:

Yes, I understand.

I think we’ve got to look at this whole picture and I think the Government cannot justify what was done.

I don’t think a search warrant would justify it because the amendment is clear that people are to be protected in their homes and properties and no search shall issue except on a search warrant specifically describing the place to be searched and the property to be seized.

Felix Frankfurter:

That is —

Norman Leonard:

Specifically describing.

Felix Frankfurter:

The — either the U.S. Attorney or an FBI man couldn’t have gone into the Commissioner at Stockton and said, “Please sign this search warrant which prepared to it.

Take all articles that you find which in the judgment of the searches seems irrelevant to the prosecution of the case.”

No Commissioner in his sense would sign such a search warrant.

Norman Leonard:

Exactly.

Felix Frankfurter:

Is that it?

Norman Leonard:

I think that it could not have been done here.

Now, to get to the — the Government of course can seize that there wasn’t any warrant here but it suggest that this search and seizure could be justified on the ground that it was incidental to valid arrest.

We answer that that isn’t so because first, the arrest themselves were invalid.

Certainly, the arrests of Kremen, Coleman and Ross without process and here is the situation, no process for the search, no process for that arrest.

Those arrest weren’t valid we say and they can’t be justified on the so-called exception that an offense was being committed in the presence of the officers, the offense being either harboring or accessoryship, we maintain and time just won’t permit me to develop the arguments as developed in the briefs.

That there must be more than mere presence with the fugitive even presence overnight which is the most that they had.

To give an office a probable cause to believe that somebody is harboring the fugitive arrest and otherwise every hotel keeper, every person who was with the fugitive would be subject to arrest on that (Voice Overlap) —

Felix Frankfurter:

You mean to say if an officer went by and happened to go by and saw somebody who looked like a fugitive from New York, (Inaudible) assuming the likeness, the kind of likeness that one detects that people would know, he couldn’t make an arrest then and there?

Norman Leonard:

Oh yes, I’m not talking now about the arrest of the fugitives.

I’m talking about the arrest of the person — there was process (Voice Overlap) —

Felix Frankfurter:

Yes.

Norman Leonard:

I’m going to get to that in a minute.

Felix Frankfurter:

Well about the people whom he lived?

Norman Leonard:

Oh about the about the people for whom they had — had process, we say —

Felix Frankfurter:

No, I’m not talking about the person —

Norman Leonard:

Oh the — the person with whom he is.

Felix Frankfurter:

Suppose they find living in this — in this (Inaudible) would you indicate it where it was and that he lived with them on terms not of a fellow who just passed where he was but seems to be part of the household.

Norman Leonard:

I think that living with him overnight isn’t enough.

Norman Leonard:

I think that there are particularly in a resort community, I think that —

Felix Frankfurter:

But this wasn’t an inn was it?

Norman Leonard:

The officers didn’t know whether it was or not at the time.

It was — it was a cabin in the country and there were five people in a resort area.

It didn’t say hotel or inn on it to be sure, but it might very well have been a guest house.

I think that the Court doesn’t have to get to the question of the validity of the arrest because I think even if the arrest were valid, the search as it has been here described was invalid and on that of course we rely on many of the decisions of this Court which limit the purpose and scope of searches to the objectives of the amendment and particularly, we like to recall to this Court the language of Mr. — of Judge Learned Hand in the Kirshenblatt case, whether there was a valid arrest.

But nonetheless, despite the fact that there was a valid arrest, there was a wholesale rummaging through the household and Judge Hand in Kirshenblatt striking it down said, “After arresting a man in his house, and that was a valid arrest, to rummage at will among his papers and search of whatever will convict him appears to us to be indistinguishable from what might have been done under a general warrant.”

Indeed, said Judge Hand, the warrant would give more protection for presumably it must be issued by the magistrate.

And if it could have been issued by a magistrate, we think perhaps it couldn’t have, there would have been some protection.

And Judge Hand concluded, “No less must we forget that what seems fair enough against a squad of huckster of bad liquor may take on a very different phase if used by a government determined to suppress political opposition —

Felix Frankfurter:

You think that’s —

Norman Leonard:

— under the (Voice Overlap) —

Felix Frankfurter:

— you think Judge Learned Hand’s expression of that opinion is the law of this — is the law of this Court?

Norman Leonard:

I think so Your Honor.

I don’t —

Felix Frankfurter:

Perhaps some up sailing here.

Norman Leonard:

Well I understand.

I — I do not believe that the cases upon which the Government relies.

The Rabinowitz case and the Harris case have changed that law of Judge Carson — of Judge Hand because in all of those cases as we try to point out in our briefs, we had — first you had valid warrants then you have specific, narrow searches for specific contraband objects.

I think that the principles of (Inaudible), Lefkowitz are still good law, this Court has never said they weren’t.

Felix Frankfurter:

Rummaging of drawers in a room, all the (Voice Overlap) —

Norman Leonard:

After which there was a single room, it was — of course they were there under a warrant too.

I — I don’t want to have to defend those.

Felix Frankfurter:

Well, a warrant for what Mr. Leonard?

Warrant for the person.

Norman Leonard:

I think so.

Felix Frankfurter:

Well but — but this argument goes on the assumption that the arrest —

Norman Leonard:

That the arrest is valid.

Felix Frankfurter:

Does not come —

Norman Leonard:

That — that’s true.

Felix Frankfurter:

— from one (Inaudible) to another.

Norman Leonard:

Yes.

I — I — that — that’s true.

I — I was doing that.

I don’t want to over look the fact that we have a point here that this arrest were not valid and with respect to Thompson and Steinberg, I want to make the point that the arrest outside the house even if it was valid does not justify the search inside the house and this Court has never said that an arrest outside the house will justify a search inside.

Assuming that the arrest were valid, what do you think would have been the permissible limits of the search if any?

Granted the validity of the arrest and granted what follows from it the character of this place is not a home but a hideaway?

Norman Leonard:

Well, I — it’s hard for me to say what the permissible limits of the search would be Mr. Justice Harlan.

My — frankly, my problem here is to convince the Court if I can that this search went beyond those permissible limits whatever they were.

What I’m get — getting at is that it seems to me that what you’re really arguing is no search at all is permissible but how do you draw the line?

Norman Leonard:

Well it’s — I appreciate it’s a difficult question to draw the line.

This Court has said time and again that in these cases, what it has to do is decide the case from the whole atmosphere, the total facts of the case.

And it is our view that on the total facts of this case at least this search was not permissible whether the agents could have in some fashion gone to the Commissioner in Stockton, told them what had transpired up to that point and prepared appropriate affidavits so that under the guidance of a magistrate would be in a position of the judicial objectivity that is suppose to take place and which obviously didn’t take place.

And whether they could have succeeded in preparing the right kind of a record that would stand up is a question.

I’m inclined to doubt because I think what they were seeking is perfectly manifest was evidence.

Could I — may I ask you another question?

Norman Leonard:

Yes, sir.

Assuming that the search was valid as an incident to the arrest, do you think it became invalid because they try to go over the stuff and examine it down to the FBI office?

Norman Leonard:

I think so.

I think it certainly goes to the question — it’s relevant to the question of its purpose.

It highlights the object and purpose of it and the fact that they used it to give them leads to other have evidence.

It Judge Denman in the court below as you have observed from his dissenting opinion thought that that was a factor of significance.

And thought that this Court’s opinion in Lefkowitz, would have outlawed a search and the transportation particularly, he emphasized the transportation to San Francisco.

Felix Frankfurter:

Mr. Leonard may I suggest that we’re not as much at large being on what has been decided.

We’re not much — as much at large as you indicate namely we got nothing to go on except just to have atmospheric smell in each case.

That isn’t the situation at all because at least we start with the fact that any taking without a warrant is an exception to a constitutional restriction so already we’re not at large.

And it’s up to the Government to justify and justify very heavily that this was necessary, a necessary incident.

When you deal with incidents, you don’t deal with wholesale.

Hugo L. Black:

Suppose the seizure.

Norman Leonard:

Excuse me?

Hugo L. Black:

Suppose the seizure goes far beyond anything that could possibly be needed, does that have any effect or could you say that the seizure of the things that it might have been able to get would still be valid although they have gone far beyond the bounds of what should have been seized?

Norman Leonard:

I would say that if they had gone far beyond, that would invalidate the entire situation.

I think what we have here is a question of standards of conducts of federal officers.

There are number of objections I might say incidentally, that the government is opposed to this thing.

Time just won’t permit me to discuss, they’re in the brief.

The Government says that our people don’t have standards to raise it because we didn’t have possession or we didn’t claim property rights.

They — they made technical objections of that find too.

I don’t think we’re concerned with questions of that kind nor do I think we’re concern with the technical rules of evidence as to whether this particular piece of evidence perhaps they could have taken and that one they couldn’t.

The Fourth Amendment enjoins the federal government as Mr. Justice Frankfurter’s indicated from entering people’s homes and seizing their property without warrant.

And once it’s shown that they’ve done that which is what is clearly shown on this record and then engaging in the kind of rummaging search that they did.

I think that their conduct must be stricken down.

I think that as a supervisory court, this Court has done it before precisely because we’re dealing with federal officers.

We’re not dealing with the state case here.

We’re dealing with officers in effect this Court and the federal government.

Now we can’t — this Court cannot permit that kind of conduct to go on with so to speak by an argument.

Well, this little piece was all right.

This little piece could have been taken or that little piece could have been taken.

And the total situation I think it’s clear that the officers acted —

Hugo L. Black:

I suppose — I suppose here the Government doesn’t contend that there was any possible basis for taking some of these things like hair brushes, hair tonic, lipstick, things of that kind.

Norman Leonard:

Well I think the Government avoided if I may say so, of course we’ll hear from counsel in a few moments.

I think the Government avoids meeting the issue.

Felix Frankfurter:

What I’m — what I’m asking you was, what are your views if things were taken, a large number of things, everything there, such as that that were wholly immaterial, irrelevant couldn’t possibly (Inaudible)

What’s your view as to the effect of that on the whole thing?

Norman Leonard:

I think that —

Felix Frankfurter:

That’s the seizure — that’s the seizure.

Norman Leonard:

Yes, sir.

I think that illustrates the illegality of what the Government did.

Felix Frankfurter:

Do you think the rule includes illegal seizures to the extent that they go far beyond what they authorize — where they’re authorized to go assuming they authorized.

Norman Leonard:

Yes, sir.

Felix Frankfurter:

That the rule requires that all of it be held inadmissible every pieces of things — everything that they get?

Norman Leonard:

I would — you might have a question of balancing some convenience here.

If there was one piece of evidence that was immaterial and all the rest of it was properly admissible, that might be one situation.

Here, you have almost the reverse situation where there were a handful of pieces that the trial judge admitted very damaging but just a handful and then the hundreds of others.

Felix Frankfurter:

Did they usually live there?

Norman Leonard:

No, Your Honor, they did not.

But I think the fact that they seized, just swooped up everything cannot be ignored even though it wasn’t received an evidence, cannot be ignored in assessing the conduct of the officers who are federal officers who are bound by the Fourth Amendment just the way everybody else and the country is bound by the Fourth Amendment.

There are a number of subordinate points here that I just — I’m not going to be able to get to and I’m going to have to rely on what we said in our briefs in connection with them.

There are two other points in connection with this writ that I think the Court need not reach because I believe that the search point that we have been discussing at such great length in this argument is dispositive of the case.

But should the Court disagree with me, I would like to just mention them briefly.

We do contend that the statutes were unconstitutionally apply to these people because the facts, what were shown was a single act of harboring and nonetheless, by charging four separate and distinct offenses, the penalties which were imposed upon these people greatly exceeded what could have been imposed under the harboring statute.

Now the Government makes an argument in its brief that well, the elements of the crime are different.

They are separate elements of the crime and they setup the elements in great detail.

There is no doubt about that.

We never argued that the statutes were unconstitutional on their face.

The — the accessoryship statute or the harboring statute but we said, that what the Government proved and all that it proved here was one offense but the identical evidence that was used to establish the harboring is also used to establish the accessoryship.

And if there are differences, different elements in these crimes, the Government didn’t established any different elements, it simply established —

Felix Frankfurter:

I don’t misunderstand.

There is no difference or is there between you and the Government, the crime of harboring is that it’s more like a status that you can allege an offense for each day that the harboring continues, the Government doesn’t make any such claim, does it?

Norman Leonard:

No, I don’t think.

Felix Frankfurter:

That is if you are harboring for six months, there is no difference in harboring for six hours?

Norman Leonard:

I — I think that’s correct.

Felix Frankfurter:

Would you mind telling me what — I don’t quite understand the (Inaudible) on page 68.

That since the Government has failed in his view through the case of harboring, the powers of contracting a conspiracy problem is called as well.

I don’t quite understand it.

Norman Leonard:

I take it that for Judge Denman meant that — was that if they hadn’t proved the substantive offense they couldn’t have proved the conspiracy.

Felix Frankfurter:

How can he — how can he mean that?

Norman Leonard:

I take it that what he had in mind is this, Mr. Justice Frankfurter that the conspiracy requires proof of — no it couldn’t have been.

I was going to say that the conspiracy requires proof of both the substantive offense and an agreement and therefore if he didn’t prove the substantive offense — but that isn’t so.

I think what he must have had in mind is this, that the failure of proof with respect to the substantive offense of harboring, indicates also that there was a failure of proof with respect to conspiracy for this reason.

Because he said that the reason he gave for believing that there was no proof of harboring was that there was no proof that these people had the requisite knowledge that they knew that the person was a fugitive or that they knew that there was process for him.

Norman Leonard:

Therefore, the substantive count had to fall.

Well, if there was no proof that they knew that there was process for him or knew that he was a fugitive, there couldn’t have been any proof of conspiracy to do that either.

I think that was the basis of Judge Denman’s reason.

We make additional arguments with respect to this unconstitutional application of the statute that I will again have to refer the Court to the briefs for them.

But to say this, the Government contends that there – it approved here two separate conspiracies, one conspiracy to harbor Steinberg, one conspiracy to be accessories after the fact of Thompson’s arrest.

They said there are two separate conspiracies.

Again, we argued that the proof was identical, the overt acts were identical but quite apart from that.

If the Government’s theory is set, they could have charged these people with three conspiracies, the Steinberg conspiracy and Thompson conspiracy and a joint conspiracy which they say occurred later.

As a matter of fact, the record and the briefs reveal and I think the Government will dispute it that about this time although it isn’t true today.

At about this time, there was some five or six of these fugitives.

Our contention is that certainly, it couldn’tbeen said that if all five or six of those fugitives were found there that there were five or six separate conspiracy.

There was one conspiracy as a matter — if there was any at all.

As a matter of fact, the prosecutor so stated in his opening argument to the jury, called this a Communist Party conspiracy to protect its leadership.

The mere fact that they protected two leaders or three leaders or four leaders wouldn’t make it two or three or four conspiracies.

I don’t think the offenses could be so multiply.

Now, finally, we contend on our third point, I haven’t touched all the sub-points or the second point, the time won’t permit it but we contend that the indictment was defective for this reason, that it alleged that Thompson was guilty of a conspiracy to organize a society to overthrow the government by force and violence.

In violation of Sections 2, 3 and 5 of the Smith Act, 2, 3 and 5 of the Smith Act of course do not deal with that kind of a conspiracy.

They deal with conspiracies to teach inevitably.

We said the indictment was inconsistent on its face.

On the one hand, it says, he was guilty of the offense of conspiring to overthrow in violation of a statute which doesn’t talk about all the time.

The proof was a variance with the indictment if you eliminate the conclusion about the Smith Act from the indictment because the proof was that the conspiracy was to teach and advocate rather than to organize or overthrow and the trial judge erroneously instructed the jury that the proof conformed to the indictment.

But we think that the Court need not really reach those points.

We think that this case is a square of search and seizure case.

I don’t mean I’m abandoning those points, I don’t want to be misunderstood.

But we do think that the basic issue in this case is whether or not the rights of these people under the Fourth Amendment were violated.

And we think that that’s the issue on which it ought to be and should be decided in their favor.

The Government makes some arguments about — about lack of possession, lack of claim of property on the part of these people, we think they are not irrelevant.

We think that the mere fact that they were there is enough to give them standing to raise the issue.

It certainly was enough for the trial judge to permit the introduction of the evidence against them.

That was the basis on which Judge Goodman offered the — permitted the evidence against him to be received.

Norman Leonard:

He said, “Well, they were there.”

And if it was certainly, if it was enough to hold them responsible in a criminal sense, the evidence could be use against them is certainly is enough to give them standing to make the objection now.

We don’t —

Is any — any of this stuff on this list returned to these defendants?

Norman Leonard:

Some was.

I think that the tail end of the list Mr. Justice Harlan you will find some notation of — of some material that was returned.

On the last page you will see that, I know for the fact of course that the two automobiles were finally return to me and I turn them over to the people to whom they were registered.

And I think some material was returned to Mrs. Kremen.

Yes, at the bottom of page 19 the italicized page 19, the following item were returned to Shirley Kremen et cetera.

It’s a photographed records and —

Was the rest of these stuff is still on possession?

Norman Leonard:

Yes, sir.

If I have any time Mr. Chief Justice, I like to reserve.

Earl Warren:

You may.

Norman Leonard:

Thank you.

Earl Warren:

Mr. Maroney.

Kevin T. Maroney:

May it please the Court.

I intend to get to the search and seizure question without undue delay, but before taking up that point, the constitutional questions involved the validity of the arrest.

I would like to briefly outline some facts of the case, the evidentiary facts which I feel should be born in mind with proper consideration of the legal issues.

And to discuss an argument put forth by the Government to the effect that we do not feel this Court should reach the constitutional questions, the Fourth Amendment problem which been raised by petitioner’s brief.

Now, first with respect to some of the facts which were developed during the course of the trial, and these facts are set forth — the facts that I am referring to are set forth on our brief from pages 6 through 10.

I’m just going to refer briefly to some of those facts.

The evidence showed that Thompson, Steinberg, Ross and Coleman were all long-time into this.

They all had offices in the same building at Communist Party headquarters in New York City.

On June 20, 1953, approximately two months prior to the arrest in the case.

Petitioner Kremen using the false and fictitious name of Mrs. Lee Kaplan rented the cabin here involved in Twain Harte.

She told the real estate broker at the time of making the lease that she desired the cabin for her sick brother.

Earl Warren:

Which one was that?

Which woman was that?

Kevin T. Maroney:

That’s petitioner Kremen, Your Honor.

Earl Warren:

Kremen.

Kevin T. Maroney:

The evidence showed that petitioner Steinberg identified himself to the owner of the cabin as Mr. Newberg and he referred to Mrs. Kremen as his sister.

Of course the evidence reflects that petitioner Steinberg not only is not the brother of Mrs. Kremen but he was not ill.

Mrs. Kremen said at the time of negotiating for rental of the premises that she liked the cabin because it was quiet and out of the way.

The evidence also show that the petitioner Steinberg seem to be the host or master of the cabin.

On one occasion, he ordered Mrs. Kremen to pay a light bill to the owner of the cabin Mr. Germany.

Petitioner Kremen made several purchases, a large quantities of food from which an inference to be drawn that the food was for the purpose of feeding the two fugitives and the other people at the cabin.

On one occasion, she and a male companion attempted to purchase hair dye, and in this connection, it is significant to note that Mr. Thompson at the time of his apprehension had dyed red hair and a dyed mustache.

The evidence also showed that on June 5, 1953 also about two months prior to the arrest in this case.

The petitioner Coleman using the false and fictitious name or William Gordon purchased a Hudson automobile in Missouri.

And at the time of purchase, he explained that he needed the automobile in a hurry for a vacation.

The keys to this automobile were found in Thompson’s pocket when he was apprehended.

On July 4th, Coleman still using the name of Gordon and Thompson were members of a party of four which rented boats at a resort in Bigfork, Montana, oh I’m sorry, in Camdenton, Missouri.

And during the early part of August, Thompson purchased a fishing license in Bigfork, Montana using the false name of J.F. Brennan.

At the time of his arrest, the evidence showed that he was in possession of various identification cards, I think 12 cards of different types, Social Security cards, fishing licenses and things to that sort under the false name of John F. Brennan.

There was nothing on his person at the time of the arest, nothing in the cabin to indicate that true identity of Thompson or of Steinberg.

Both of them were using fictitious names as were petitioners Coleman and Mrs. Kremen.

At the time of the arrest also, both Thompson and petitioner Steinberg had altered their physical appearances.

The evidence showed that Thompson had dyed his hair red.

He had gain much weight, had grown a mustache and that the mustache also was dyed.

Petitioner Steinberg had cut his hair short.

He had also grown a mustache and was much thinner.

The evidence seized in the cabin also show that petitioner Kremen’s purse contain various documents, means of identification in the name of Mrs. Lee Kaplan.

There was no indication reflecting that the owner of the purse Mrs. Kremen actually was Mrs. Kremen.

Now, going from that very brief outline of some of the evidence, it is our contention first that this Court should not reach the constitutional question raised under the Fourth Amendment.

The petitioners here were arrested in August of 1953.

In September of 1953 Mrs. Kremen claimed some of the property that was seized at the cabin and that property was returned to her.

I think it was referred to during the course of petitioner’s argument and it is set forth in the appendix to petitioner’s brief.

I think beginning at page 19.

There is a notation that the following items were identified by Mrs. Kremen and returned to her on September 25 and those items consume four and a half pages of the appendix.

Yes.

Kevin T. Maroney:

Now, no motion was made by any of the petitioners for the return of any of this property or the suppression of the property until February 4, 1954, over six months after the arrest.

And in this connection, I think we should bear in mind that of course all the petitioners were present at the time of the arrest here involved.

All the petitioners were present at the time of the seizures here involved.

Felix Frankfurter:

Had the Government moved for trial before February?

Kevin T. Maroney:

I — I wouldn’t be certain, Your Honor.

Felix Frankfurter:

It might make a difference.

Kevin T. Maroney:

I don’t — I don’t think it will, Your Honor and I wouldn’t certainly rely on that fact.

Felix Frankfurter:

Well, but I might.

Kevin T. Maroney:

Well, I mean in my — in my argument.

I’m not sure.

I wouldn’t be certain.

Now, this February 4 motion was the motion for the return of property and the supression of the property as evidence.

It was accompanied by an affidavit of petitioner Steinberg in which he merely ask for the return of the property seized between hard cabin on August 27, 1953, the date of the arrest.

Earl Warren:

Where do we find that?

Kevin T. Maroney:

The motion?

Earl Warren:

Yes.

Kevin T. Maroney:

It’s set forth in volume 1 of the record on pages 18 and 19.

Felix Frankfurter:

Mr. Maroney of course I don’t want to cut in to your argument or affect your notion of how to argue it.

But could you tell me whether the District Court entertained the motion as timely?

Kevin T. Maroney:

At — at — on the occasion of this motion —

Felix Frankfurter:

No.

Kevin T. Maroney:

— the Court did entertained it as timely and denied —

Felix Frankfurter:

Canvass the issue?

Kevin T. Maroney:

Sorry, no sir.

He denied on the basis —

Felix Frankfurter:

No.

I don’t mean the affidavit but finally when the pretrial preceding case before Judge Goodman —

Kevin T. Maroney:

There —

Felix Frankfurter:

— did the Government say it was too late?

Kevin T. Maroney:

The pretrial proceedings, no, sir.

But the motion that was entertained by Judge Goodman that I think is involved here and a hearing was held thereon.

That motion was set off the calendar by stipulation of counsel.

There was no indication of the nature of the stipulation or what caused the stipulation.

The record merely shows that there was a hearing before Judge Goodman, the special agent Mr. (Inaudible) who was in charge of the arrest party testified as to certain circumstances surrounding the arrests and surrounding the seizures.

Mrs. Germany testified —

Felix Frankfurter:

This is before the trial?

Kevin T. Maroney:

This was before the trial.

Felix Frankfurter:

And on what issue was that testimony taken?

Kevin T. Maroney:

On the question on whether — on the motion to suppress.

Felix Frankfurter:

I — I’m puzzled.

I don’t understand.

Then there was a motion to suppress filed before the district judge before the trial came on —

Kevin T. Maroney:

That’s correct.

Felix Frankfurter:

— to be heard.

The District Judge entertained it.

Kevin T. Maroney:

That’s correct.

Felix Frankfurter:

Testimony was heard.

I don’t know for how many days if we reach page 230 and he didn’t rule on it?

Kevin T. Maroney:

He didn’t rule on it because it was set off the calendar by stipulation of counsel.

Felix Frankfurter:

You mean all this testimony was heard and then it evaporated?

Kevin T. Maroney:

That’s right sir.

And the record does not show in any way the nature of the stipulation, the purpose of the stipulation or anything else except in — pardon me.

Felix Frankfurter:

I beg your pardon.

Kevin T. Maroney:

Except insofar is it obviously mooted the hearing before Judge Goodman on the motion to suppress.

Felix Frankfurter:

How soon would you mind that’s what they decide, reading about dates with these criminal cases.

When was this hearing, there was sometimes between the hearing and the trial on the merits under the indictment, is that right?

Kevin T. Maroney:

Yes, sir.

This hearing was on April 5, I believe, at least approximately that date.

And it was set off the calendar I think on April 6.

Felix Frankfurter:

When was the trial began?

Kevin T. Maroney:

The trial began on April 12.

Felix Frankfurter:

Now when the trial — at the trial when this — when document seized or other object seized in the cabins were introduced by the Government, was there objection to that introduction?

Kevin T. Maroney:

There — there was objection on the ground that the documents have been illegally secured, the motion was denied or not the motion, the objection was overruled by Judge Goodman without explanation.

So that we have no way of knowing whether he overruled it because he was not going to interrupt the criminal trial at that point or further exploration into the validity of the search and seizure or whether he had made a determination of some kind of his own find.

Felix Frankfurter:

There’s no intimation that the things that we pointed out in the second (Inaudible) case namely timeliness is not on the rule, isn’t it?

Kevin T. Maroney:

Yes, sir.

Felix Frankfurter:

There’s no intimation anywhere that that was the basis or at any — anything in the record from which one could infer that that’s why Judge Goodman overruled the objection of testimony because of illegal seizure.

Kevin T. Maroney:

I don’t know of anything in the record from which we could infer that that was his basis.

Felix Frankfurter:

So what we have is a motion to suppress because of the Fourth Amendment, proceeding pretrial proceedings in due course, an inconclusive determination so far as any — any judgment of the record goes, is that right?

Stipulation whereby the case went off the calendar.

Kevin T. Maroney:

That’s right, sir.

Felix Frankfurter:

The reappearance of the objection at the time of the trial and your argument is that on that we must find that presumably the motion wasn’t timed, is that right?

Kevin T. Maroney:

That’s right sir.

Felix Frankfurter:

All right.

Hugo L. Black:

Where is this stipulation in the record that it should go off the calendar?

Kevin T. Maroney:

I think it’s only in the docket entries.

Hugo L. Black:

Is that what you mean by set off the record?

That’s a new expression to me.

Kevin T. Maroney:

Set off the calendar, I think that’s —

Hugo L. Black:

Set off the calendar.

You mean by that —

Kevin T. Maroney:

— it’s an expression —

Hugo L. Black:

that it was stipulated that they would take it off the calendar or does that mean that they would take it off to calendar and agreed that it should not be ruled off.

What does it mean the word “set off the calendar”

I don’t —

Kevin T. Maroney:

I — I wouldn’t be sure that the term has that precise usage, Your Honor.

For example, I am familiar with the fact that in a trial or a case that is set for trial at a certain date.

Sometimes the Court will order that the case set off the calendar.

In other words, there won’t be any date set for calling the case.

Kevin T. Maroney:

There will be just be an —

Hugo L. Black:

If you —

Kevin T. Maroney:

— Indefinite suspension.

Hugo L. Black:

If you don’t have a date anyhow on the calendar for rendering a judgment, that’s what I meant.

You — what — what you’re saying in effect is that it’s stipulated that the hearing that they were in ruling could be taken — just — just continue?

Kevin T. Maroney:

I — I would take from it.

The defendants have made this motion.

There’s been hearing, there has been a — a testimony taken in connection with the motion.

It is prior to trial that if the defendants desired a ruling of the Court, they certainly could have gotten the ruling of the court as to whether or not this evidence was or should have been suppressed (Voice Overlap) —

Hugo L. Black:

May I submit, what is there in the record that you rely on to show that to be the case?

Kevin T. Maroney:

Well there is — there is (Voice Overlap) they made a motion.

Hugo L. Black:

— have any rule on but in somehow they waived or somewhat.

Kevin T. Maroney:

Well, the fact — I’ll only draw their inference from the fact that Judge Goodman took testimonies prior to trial.

Assume he wouldn’t have taken testimony had he not intended to rule what the conclusion of the testimony.

Hugo L. Black:

Well, is there any agreement in here that he should not rule?

Is there any stipulation to that thing?

Kevin T. Maroney:

The — it’s only a minute entry Your Honor.

It’s a docket entry that I have reference to which dispose — shows the only disposition of that — that hearing.

Hugo L. Black:

Where is that?

What page (Voice Overlap) —

Kevin T. Maroney:

April 5, it is on page 73 of volume 1, Your Honor.

April 5, hearing on motion to return seized property order continued to April 6 for further hearing.

April 6 by stipulation of counsel order a motion off or motions off calendar and there is nothing else in the record at any later time as to that motion.

When did the trial began after that?

Kevin T. Maroney:

The trial began on April 12.

Just five days later.

Kevin T. Maroney:

Yes, sir.

And — and —

What inferences —

Kevin T. Maroney:

I think this might have some bearing on it.

On inferences, I should think that Mr. Green put it over and rule on the trial and so whatever is going to be used?

William O. Douglas:

That seems to be done on April 13th?

Kevin T. Maroney:

That’s a different motion.

On April 12, there was a hearing at the outset of the trial.

I think the trial was interrupted, if I recall correctly on a motion by the defendant Patricia Blau who was acquitted to suppress the property seized at the time of her arrest.

Now, that is a completely different, separate arrest from the arrest here involved in this Court.

She was arrested in an automobile five or six hours after this arrest.

And the motion on April 12 and the evidence that was taken on April 12 pertained to the motion by Patricia Blau.

William O. Douglas:

That’s in the (Inaudible)

And it goes on to say, each of said motions was ordered denied so there is more than one.

Kevin T. Maroney:

Well, there are motions for mistrial, for judgment of acquittal.

A motion on ground of surprise (Inaudible).

William O. Douglas:

But the hearing on motions to suppress evidence.

Hugo L. Black:

April 13th.

Kevin T. Maroney:

Oh I see.

Hugo L. Black:

And further here on motion to suppress?

William O. Douglas:

But currently there is more than one motion that’s being considered on April 13th.

Kevin T. Maroney:

This docket entry would make it seem so Your Honor.

Felix Frankfurter:

May I ask this one more question, Mr. Maroney.

The Court of Appeals ruled on the substantive issue on the merits of the search and seizure question, doesn’t it?

Kevin T. Maroney:

Yes, sir.

Felix Frankfurter:

Does the Government there make the contention that you now make?

Kevin T. Maroney:

This — this point was raised in the Court of Appeals.

Felix Frankfurter:

And they didn’t even advert to it?

Kevin T. Maroney:

They did not.

They ruled, the Court of Appeals ruled that there was a valid arrest and a valid search and seizure.

Felix Frankfurter:

I mean they went to the merits?

Kevin T. Maroney:

Yes, sir.

Now, briefly to just complete the basis of our argument without going into too much further detail, at the time the first motion was made, there was no claim of ownership by the petitioners by — they move unto Steinberg.

The Court in denying the motion said that you have to claim ownership.

Kevin T. Maroney:

You have to claim a possessory interest in order to have standing on a motion to suppress.

The Court said, “I’ll require the Government to give you a list, this appendix.

The inventory of the matters that were seized so that you can come in and protect your motion.” But this was furnished by the Government, no petition ever came in on a motion to suppress or a motion for return of the property, claimed any of the property and on that basis, on the basis that was illegally seized ask for its return.

Now, and I think that although I don’t know of any case which has been decided squarely by this Court that that is the law in all the (Inaudible).

And I think it is set forth with precision by —

William O. Douglas:

That is that you have to claim ownership of the property?

Kevin T. Maroney:

Yes, sir.

Oh — well, ownership or a possession.

William O. Douglas:

Well, I thought the Government was using this evidence against them on the grounds that it was in their possession.

Kevin T. Maroney:

That’s — that’s correct.

Our position is that a motion to suppress evidence should be made before trial.

The rules so provide, the judicial decisions both of this Court and of Circuits so provide the purpose being.

So that if there has been an invalid seizure and if it would be useless to go to the expense and trouble of conducting a trial, getting in the middle of it and — and having a determination that certain evidence was illegally secured and therefore the Government couldn’t continue, all that could be obligated through the proper procedure, the procedure setup in the rules by judicial decisions to take care of that collateral matter prior to trial and I think that’s the decision.

I think it’s discretionary over the court that will hear it?

Kevin T. Maroney:

That’s right — that’s right sir.

The Court may entertain the motion at the time of trial.

And heard it here?

Kevin T. Maroney:

Well, he didn’t — he didn’t hear it going to trial, I don’t believe.

In other words, the only occasion when the motion here in anyway arose during the trial was in the form of an objection to the admissibility of evidence.

I thought on the February 9th (Inaudible)

The defendants must return (Inaudible) denied.

So he denied at that time and gave them time to, I suppose, for you to get the list.

Kevin T. Maroney:

That’s right sir.

Then it came out on April 13.

That’s the day after the trial began I take it?

Kevin T. Maroney:

That was — yes.

So the hearing almost suppress after argument he said motions — I suppose the defendant filed a motion which was already denied.

So he denied it then, did he?

That was before any evidence was offered.

Kevin T. Maroney:

Well, I think that it depends on how that minute entry is construed.

Kevin T. Maroney:

It seems to me that the motion prior to trial which went to a hearing was set off the calendar by stipulation of counsel after the testimony was taken.

The defendants then, the petitioners here did not pursue it to a judgment of the Court.

Now, I’ve read that this minute entry makes it appear that it was possible that on April 13 and after entertaining the additional motion of Patricia Blau or to suppress, that the fact that it refers to motions, MOS period, it might be taken as an indication the (Voice Overlap) their ruling on the merits.

William J. Brennan, Jr.:

How can you — how — how can you ask us to infer otherwise?

Kevin T. Maroney:

Well, there — the defendants in the case had a great length of time to their motions in proper forum.

William J. Brennan, Jr.:

Well, oh apparently the motion was filed, right?

A motion was filed after the disposition of the February 9 motion.

That’s implicit, isn’t it, in the April 5 minute that there was another motion.

It’s a new motion isn’t it?

Kevin T. Maroney:

The April 5?

William J. Brennan, Jr.:

Yes.

Kevin T. Maroney:

That was a new motion by petitioner Kremen.

William J. Brennan, Jr.:

Yes.

Now then, that being so, you’re asking us to say that while it was filed, it was not disposed of before the trial, aren’t you?

Kevin T. Maroney:

That’s right, except insofar as the documentaries reflect that it was set off the account.

William J. Brennan, Jr.:

Well, I’m suggesting that something was done on April 13th from which the inference I suppose.

I think you concede maybe drawn that that motion first heard on April 5 is one of the motions disposed of in April 13.

Kevin T. Maroney:

It could possibly be drawn, Your Honor, I think certainly —

William J. Brennan, Jr.:

Well, it could possibly.

I mean how — how can you —

Kevin T. Maroney:

It’s certainly unclear.

William J. Brennan, Jr.:

How can you ask us to draw a (Inaudible)

Your whole argument of this point you’re now making depends upon our being able to say that the motion maybe, have been made before a trial but wasn’t disposed of it, isn’t that it?

Kevin T. Maroney:

That’s right sir.

And that —

William J. Brennan, Jr.:

I think you better get on to your next point.

Earl Warren:

Since Mr. Leonard was at the trial, I don’t see why we have all – I suppose you could tell us what eventually happened?

Kevin T. Maroney:

I’d be delighted, Your Honor.

Norman Leonard:

I was going to — I think the record reflects it, Your Honor.

I don’t think (Inaudible) I was trying to make that point in my response (Inaudible).

Hugo L. Black:

Let’s suppose we oath to be able to assume gentlemen that the Government — that the Government really had proved that they stipulated in some way to abandon their motion that the Government would show it to us and then ask us to infer.

Something happened there with reference to the stipulation.

The Government knows what it was and I should think if they’re going to ask us to say that they abandon their motion, they have to disprove to that effect.

Somewhat corrected or something.

Kevin T. Maroney:

Well, would —

Felix Frankfurter:

It’s difficult for me to believe or understand that a hearing was held on the same day that a motion was filed.

A piece of paper was filed at the clerk to the District Court on Monday, April 5th, and that Judge Goodman was advised of it and he said, “All right, we’ll hear this motion right away” and the witnesses were there, maybe that’s what happen.

Kevin T. Maroney:

No, sir.

The motion was filed on March 26?

Felix Frankfurter:

Very well.

So that the motion was before the Court and it was called for hearing on Monday April 5th and 6th and a lot of testimony was taken for two days and the testimony concluded for some reason or concluded, and then when it was brought up again, talk about the rules and the decisions of the Court.

As I understand the decision of this Court to which a great deal of attention was paid because of its importance to the actual conduct of the trial and the decision afterwards is reflected in the rules of criminal procedure.

One did not — one does not want — it is undesirable to break the trial on the merits with the subsidiary no vital matter.

Whereby you go off on a reason to (Inaudible)

Kevin T. Maroney:

Yes, sir.

Felix Frankfurter:

And so the rule provide on the basis of what this Court decided that the motion must be made in due time so that that can be disposed of before you get to the trial in order that the trial should not be interrupted.

Kevin T. Maroney:

That’s right sir.

Felix Frankfurter:

And that’s what evidently happened here because unless I’m contrary wise informed when the motion was renewed as it has to be renewed at the trial when the Government makes offer.

There was a quick — there was no argument about it and that Judge Goodman ruled and dispose of it presumably as Justice Brennan suggest presumably on what had happened in the earlier days.

I mean, it fits quite in with the whole philosophy or the purpose of the rule and the decision, is that right?

Kevin T. Maroney:

I — I think it normally would happen in that way.

Earl Warren:

One of you will get now to the reasonableness of the search.

Kevin T. Maroney:

Yes, sir.

May I merely refer in connection with that first argument —

Earl Warren:

Yes, of course.

Kevin T. Maroney:

— to the three cases, three additional cases which I like to call for the attention of the Court and which I asked the clerk to furnished copies to you.

Earl Warren:

Yes, we have them.

Counsel if you want to reply to them you may.

Norman Leonard:

Yes.

Thank you, Mr. Chief Justice.

Kevin T. Maroney:

Now, on the question of the validity of the search, the arrests involved in the case is our contention, all were valid arrests.

The arrest of Thompson and Steinberg were pursuant to warrant issued some two years earlier.

At the time of making the arrest of the other three persons found in the cabin, the arresting officers had reasonable and probable cause to believe that a felony was being committed in their presence.

Now, they did not have that reasonable and probable cause to believe that a felony was being committed until approximately 12:30, 35 minutes prior to the arrest.

I mentioned that in connection with petitioner’s argument that in view of the fact that there was this long surveillance and certain activities occurring the day before and so forth on the part of the bureau that there was time to get an arrest warrant for these other three people.

But that is not so, because there was no positive identification by the arresting agents that Thompson, the person at the cabin was actually the Thompson that they were looking for or that Steinberg was the man they were looking for.

Both of them were disguised as we previously mentioned.

And, so that 35 minutes prior to the arrest, they did have knowledge that these two people were fugitives.

From the observations personally made by the arresting officers the day before and on the day of the arrests from the activities and relationship of the three people in the cabin to the two people for whom they were warrants, the two fugitives.

The officers had reasonable and probable cause to believe that those other three people were harboring Thompson and Steinberg.

Now —

Earl Warren:

When did they gather this quasi of (Inaudible) for the purpose of making the raid as it was said?

Kevin T. Maroney:

I believe some fiver or six agents were at the cabin at 5 or 6 o’clock in the morning of the arrest.

And that the other agents arrived in cars at about the time of the arrest.

In other words, they drove up and drove into the premises and maybe —

Earl Warren:

Arrangement before these five or six were there early in the morning?

Kevin T. Maroney:

No, by — apparently, by arrangements made through communication by walkie-talkie during the course of the morning.

Earl Warren:

Yes.

William J. Brennan, Jr.:

Well, how far away were the agents who joined the five or six already at the cabin?

Kevin T. Maroney:

I believe the record shows that they left San Francisco that morning which is some hundred miles I believe from Twain Harte.

William J. Brennan, Jr.:

And do I understand Stockton where the Commissioner has his quarters was about 50 miles away?

Kevin T. Maroney:

About 60, yes, sir.

And the positive identification was made at 12:30, approximately 12:30.

The arrest were made at 1:04 —

William J. Brennan, Jr.:

Well was —

Kevin T. Maroney:

— so —

William J. Brennan, Jr.:

— do we — do we understand that these agents coming from San Francisco were on route before the positive identification was made?

Kevin T. Maroney:

I think that that — that is so.

And it would seem from the time of — that they — at the time of the positive identification were probably 20 or 30 miles from there.

Now they — they were in route.

Kevin T. Maroney:

They could have been in the City of Twain Harte.

They could have been only three or four miles away, the record doesn’t make that clear.

The point we make is that there was only some (Inaudible) between the point of the positive identification and the making of the arrests and have these two fugitives, the agents were confronted with a situation in a remote cabin, remote place where there were two fugitives who had been at large for over two years.

And I think to require the arresting officers to go get a warrant for the other three people would not be permitting two arresting officers the degree of latitude which I think this Court has held should be accorded to persons who are daily in combat so to speak with the criminals.

It would be unrealistic it seems to me to require an officer coming across a situation such as this to go 60 miles or so to get a warrant before he makes the arrest.

The arrest — the crime of harboring, reasonably and probably according to their observations were being committed in their presence.

And they had a right to determine and the circumstances of this case when to close the traffic.

Now, I think that in those circumstances and in light of the information known to the arresting officers, the arrests in this case were valid arrest based on reasonable and probable cause.

As this Court stated in the old case of Stacey v. Emery.

The circumstances known to the officers must be such as to warrant a man of ordinary caution to believe or to entertain an honest and strong suspicion that the person is guilty.

Certainly, from what the officers knew here, they could entertain.

They believe the reasonable, honest and strong suspicion that these other three people at the cabin who had been there all night, who had not arrived in the cabin early in the morning who were obviously living with these two people were haroring those two people.

Now, then to the — going next from the proposition that the arrests were valid, this Court has held that pursuant to an incidental to an arrest, to a valid arrest, the person who was arrested and the place where he is arrested may be searched for the fruits of the crime, the tools of the crime or for weapons, contraband and like matter.

Now, I think it has been covered the nature of the evidence that was seized.

Hugo L. Black:

What could be the fruits or the tools of this crime?

Kevin T. Maroney:

The tools of this crime I think as the evidence here amply demonstrates and I think as reasonable to suspect, to suppose is false identification in each.

Actually, harboring being the type of crime it is.

The — the very essence of the crime depends on putting up an appearance to the casual observer so as to avoid suspension.

To appear to be engaging in innocent activity, to protect the true identity of the person who was being harbored, to clothe that person, to feed him, to provide him with the ordinary necessities of life.

I think that in essence is a harboring case.

And I think that from the very nature of the crimes, it’s reasonable to suppose that there would be those tools of the crime so to speak present in the premises.

There would be false identification cards, Social Security cards, driver’s licenses.

There would be the cryptic notes such as were found by the officers in their search here, obviously meant for the purpose of facilitating, clandestine meetings with other people who may have been involved in the harboring enterprise.

Technically, I think in a very little sense, the cabin it self was a primary tool of the harboring process.

One of the — one of the functions of harboring someone is to provide him with a place to stay at least where he can feel at least secured, a place where he can be fed and so forth.

William J. Brennan, Jr.:

Well, would you say that all of the items listed here is taken all into one or the other of the categories you’ve given them?

Kevin T. Maroney:

Well, I think in describing the tools of harboring offenses, it’s difficult to draw a line.

I would like to go so far as to say that a pair of socks, a pair of shoes, at least all of the shoes that were taken in this seizure —

Earl Warren:

Wash rags.

Kevin T. Maroney:

— were tools.

Kevin T. Maroney:

Sir?

William J. Brennan, Jr.:

Wash rags?

Kevin T. Maroney:

Wash rags and things of that —

William O. Douglas:

They both — concert D major.

Kevin T. Maroney:

Sir?

William O. Douglas:

Beethoven’s concert.

Kevin T. Maroney:

The — the records?

William O. Douglas:

In D major.

Kevin T. Maroney:

Well, I think that certainly it is essential to harboring someone, to provide necessities of life.

William J. Brennan, Jr.:

What about the folders of 40 finest restaurants in San Francisco Bay area?

Kevin T. Maroney:

What was that sir, I didn’t —

William J. Brennan, Jr.:

Folders of 40 finest restaurants in San Francisco Bay area.

Kevin T. Maroney:

No, sir I — we — we don’t make the contention, we don’t make the contention.

I was merely previously making an argument that the tools of the harboring offense are dissimilar to the tools of most offenses.

In a — in a robbery case, the tools of the crime or a gun or something to that sort and in narcotics, it is morphine or cocaine.

Felix Frankfurter:

And you already suggested what — that the house itself is a tool so that if you could quickly put it on wheels, you could have cut that off in order to put in evidence that the lowliness of the spot which this was found and the doctrines of inaccessibility et cetera.

I’m — I’m not —

Kevin T. Maroney:

We — we —

Felix Frankfurter:

— convening to be ironic that’s — that’s your argument —

Kevin T. Maroney:

Well —

Felix Frankfurter:

— isn’t it?

Kevin T. Maroney:

Well, I — I do not mean to suggest that we attempt to justify the seizure of all this material on a basis of the material all being tools of the offense.

I — I don’t mean to imply that.

My discussion earlier was that in a harboring offense, a unique type of crime, the tools of the offense often are innocent appearing things (Voice Overlap) —

Felix Frankfurter:

Therefore, you take all and then select what is useful, is that it?

Kevin T. Maroney:

No, sir.

We justify or attempt to justify a seizure here.

Earl Warren:

Can we just start on the first page please on Exhibit A, that’s your list of these things, just go down the list for a little ways and tell us — tell us what ones those things are — are — were appropriately seized because of the reason you have given?

The sleeping bag, a sleeping bag in a case, two brown canvass covers, and then one hair brush, one toothbrush, one bar of soap, one shoelace, two packages of pipe cleaners, one pencil, flashlight battery, razor blades, one package or lighter flints, one spool of fishing leader material, one bar soap.

Now what ones — what ones of those things are reasonably taken in this situation?

Kevin T. Maroney:

I — I think as tools of the crime that none of the items that Your Honor has just read, we don’t claim that they were taken as tools to crime.

Earl Warren:

Well, how far do you have to get down until you find something?

Kevin T. Maroney:

I think —

Earl Warren:

Look over that list and give me the first — first things you think are material.

Now, we go down further, Prince Albert tobacco, and a calendar, Digest of Angling Regulations —

Kevin T. Maroney:

If I — if I might summarize what I think were properly taken as tools of the crime here.

Earl Warren:

Yes.

Kevin T. Maroney:

I would say the matters that were offered in evidence, the false Social Security cards, driver’s licenses, matters of that kind, things which is established or tended to — were meant to establish a separate identity of the people who were being harbored and who were doing the harbor.

They, I think were definite tools of the crime.

During the search there was some matters — there were some matters which were seized as evidence.

And I think that where a proper search is being conducted and evidence is run across that that evidence can’t be seized.

Now, as to the seizure of these remaining items, I think it is clear from the testimony of the agent that the purpose of taking all these materials, all these things that belong to the defendants was part of it for the purpose of tools of the crime and the other part for some evidentiary value, but the bulk of the material for the purpose of safeguarding.

Here was a cabin in a remote place.

All the items of the cabin were being taken away to San Francisco, 120 miles away.

It was a ready camp.

Similar, I gather to — to a cottage at a beach, this was a resort now, this was a cottage that apparently was rented in the summer months.

William J. Brennan, Jr.:

Did the Government have any obligation to safeguard any?

Kevin T. Maroney:

Well, I think that possibly there would be — I — I don’t think there’s an obligation to safeguard it Your Honor.

Earl Warren:

Do they usually do that?

Kevin T. Maroney:

But there was —

Earl Warren:

Do they usually do that?

Kevin T. Maroney:

Safeguard material?

Earl Warren:

In this way, did you ever — did you ever know of any other case in your law enforcement work where they arrested somebody for a bailable offense where they moved them out of their whole home, bag and baggage, every single thing that was in it so that if they got out on in bail within an hour or two, they’d have nothing to come back to except an empty house.

Do you know of any such case in —

Kevin T. Maroney:

I do not.

Earl Warren:

— your experience, neither do I.

Kevin T. Maroney:

But I — on the other hand, Your Honor don’t know of any case where the circumstances as presented here were present.

Earl Warren:

What circumstances?

Kevin T. Maroney:

The —

Earl Warren:

They change that rule?

Kevin T. Maroney:

Well I think this Court has — has stated time and time again that each case must — must depend, must be decided when you’re considering the reasonableness of the search and the reasonableness to seizure.

(Voice Overlap) — must —

Earl Warren:

(Voice Overlap)

Kevin T. Maroney:

— depend on his own peculiar facts and circumstances.

Earl Warren:

Yes.

Well, just take these facts.

Where would these people have gone to live if they got out on bail which they were entitled to do if they had the means to do it when you took them down to Stockton or to San Francisco, wherever you did take them.

Where would they have gone to live if you looted their home and took everything that was in and out?

So they didn’t have a cooking utensil or a blanket for their beds or — or a stitch of clothes or anything else.

What would they have — what would they have done?

You had all their money, everything that was in their wallets.

How would you expect them if — if we’re going to deal with this as a reasonable search, what would you have expected those people to do?

Kevin T. Maroney:

Well — may I say this, Your Honor that a question of the reasonableness of the search depends on the nature of the offense, the circumstances under which the arrests were made and whether as an incident to that arrest, it was proper to go through this house and to search for the fruits — for the tools of the crime.

Now if it was proper to make that search, and I think it was and I think that — that it can be sustained under the — under the Harris case and under the Rabinowitz case.

That the fact that some materials were taken away which —

Earl Warren:

Not some but —

Kevin T. Maroney:

— perhaps we’re not subject to the seizure.

Earl Warren:

Not some but everything they had to live with.

Everything.

Kevin T. Maroney:

Well I think it depends on whether or not there was any malice here, any other disregard shown by the officers.

I think the officers in this case showed a considerable — interest in the people.

I think at the time of the arrest, they were considerate of their immediate wants, they — they, the people at the time of the arrest were all in sports clothes, they were leaving this resort going to San Francisco, each of them was permitted to go back into the house to select whatever clothing he desired for — for the trip to the city.

He was — they were permitted to or they were asked whether there were any valuables in the premises belonging to them that — of a personal nature or of a valuable nature.

Felix Frankfurter:

Mr. Maroney, I think the line of argument that you’re now making really from my point of view gets to the bottom of this problem of unreasonable search and seizure, namely, we talk about reason, unreason as though we examine whether from the point of view of conscientious, high-minded, if you will, law enforcing officers.

This is the kind of thing that — for all I know you and I would have done it — I’ve been in — we’ve been in their places.

And I think from my point of view that’s the vice of dealing with the problem in that way.

The reasonableness with which — by which this must be judged, the reasonableness must be projected against the Fourth Amendment which presupposes a fixed screw of requiring a warrant — a search warrant, and a search warrant limited very specifically and subject to judicial determination to which there are these very narrow exceptions that we talk about and you talk about the tools of the crime as though there’s some principle of law which is the starting point.

Namely, you can grab everything that may deemed to be a tool of a crime.

I can see that could be a wholly misconceive, misconception on the way of dealing with this problem.

You’ve got to start with the fact that it’s prohibited and that the exception is a very narrow one, an extremely narrow one which had it’s reason — and reason namely you want — for the safety of the arresting officers, you want to be sure that they haven’t got a pistol of what not or a knife and secondly that he shouldn’t go away with the evidence.

Felix Frankfurter:

Now, if the reasonableness is restricted to those considerations, then we’ll get a proper basis from which to judge these things instead of considering it, whether these are high-minded in inhumane law offices.

Kevin T. Maroney:

Well, if Your Honor please, I think this Court in the Harris case ruled that whether it was a valid arrest, the place can be searched for the tools of the crime.

Now in the Harris case, of course the defendant was being arrested on a warrant or I think the transportation in the Interstate Commerce of fraudulent document — some — some such offense as that.

And he was arrested in the living room.

William J. Brennan, Jr.:

— Mr. Maroney.

If you had gone before a Commissioner or these officers rather had gone before a Commissioner on the usual affidavit, how could they possibly have justified an application for a warrant authorizing to do what they did here?

Kevin T. Maroney:

On the basis of searching for false identification cards, things of that sort.

William J. Brennan, Jr.:

Well do you think — do you think that the commissioner would have issued a warrant which authorize the taking of all their clothes, all their food?

Kevin T. Maroney:

No, sir.

William J. Brennan, Jr.:

Even their toothbrushes and all the other things?

Kevin T. Maroney:

No, sir.

I — I don’t think there could have been a warrant for — to take all these materials.

Felix Frankfurter:

And that’s — so that’s the logic of this thing that you can do more without a warrant than with a warrant?

Kevin T. Maroney:

No sir, the logic I think is this that — that — we come first to the question, was the search reason —

Felix Frankfurter:

It doesn’t follow —

Kevin T. Maroney:

Now could they —

Felix Frankfurter:

— even if that is true that you concede what you’ve searched.

Those are two different things.

The Constitution you search and seizure, there’s a long history behind that.

It didn’t mean you can carry off everything you’ve touched and found out.

The fact that you may search something doesn’t mean thereby you can search and seize everything you’ve searched.

It was a different conception, have different histories and different purposes.

Hugo L. Black:

I would like to, if you would argue on a little different basis on what you have.

Assuming — assuming that this was a reasonable search as Justice Frankfurter has pointed out, it was different.

I haven’t heard anything you said, it indicated that you could argue or would argue that it was a reasonable seizure.

Now there are plenty of our cases upheld I suppose — maybe find — you find support for your search.

But do you find any support in any case the courts have written for a seizure like this as reasonable?

Kevin T. Maroney:

No, sir.

I know no case where —

Hugo L. Black:

Well, do you think if it is an unreasonable seizure, do you think our cases require that they have to (Inaudible).

Hugo L. Black:

Are you —

Kevin T. Maroney:

All the evidence —

Hugo L. Black:

Are you arguing — are you arguing that even though it is wholly unreasonable seizure, that you can pick out certain parts of it and offer them because it would have been reasonable had you limited it to that.

What is —

Kevin T. Maroney:

I think that —

Hugo L. Black:

— what is your argument on that?

Kevin T. Maroney:

I think this that it — if it was reasonable on the first instance to go through this property, to look at, to examine, to take what was a tool of the crime or the fruit of the crime.

The fact that more was taken than that —

Hugo L. Black:

On — on —

Kevin T. Maroney:

— should not —

Hugo L. Black:

To make it an unreasonable seizure — what do you say if it has to be concluded that it was a wholly unreasonable seizure as I may say it seems to me, it’s no answer to that charge.

Kevin T. Maroney:

When you say wholly you mean — you mean the material that was taken in addition to —

Hugo L. Black:

All — all these things that stripped the house of the toothpaste and the toothbrushes and everything on that and the clothes.

Assuming now that that’s an unreasonable seizure, do you argue that you could offer that part which might have been reasonable that you limited the seizure there?

Kevin T. Maroney:

Yes, sir.

Hugo L. Black:

You do?

Now what cases?

That’s the argument I’d like to hear because it seems to me you’ve reached that point.

Kevin T. Maroney:

Well, I know of no case and I don’t think this Court has ever ruled on a case where certain material was seized.

And there was a determination that the search was reasonable but there’s more — or that certain items were taken which should not have been taken.

Hugo L. Black:

But I — you stated that certain — certain items were taken which made it a wholly unreasonable search and seizure.

Kevin T. Maroney:

Which made it —

Hugo L. Black:

Are you — are you depending this as being a reasonable seizure?

Kevin T. Maroney:

I — I (Voice Overlap) being a reasonable search.

And I (Voice Overlap) — and I think that the fact that there — that they — they may have seized articles which they should not have seized under the Fourth Amendment and I say for the purpose of safeguarding those articles —

Hugo L. Black:

You mean safeguarding a toothpaste?

Kevin T. Maroney:

Safeguarding all of their properties here.

There was — there was money, take the money for example.

There was — there was over $2000 I believe that was taken at the time of the arrest.

Now, surely that money shouldn’t have been left lying around.

Hugo L. Black:

Were you afraid they couldn’t take care of it?

Do you think your officers were afraid?

Is the Government arguing that this is a reasonable seizure?

If so, and that’s the basis of — I think you should say so.

Kevin T. Maroney:

I think it’s — it’s reasonable and when considered in the light of the purpose for which it was done.

It’s like — it’s like making an arrest of a person and I think it’s customary to take — to take the money way from the person than to hold it while he’s in jail.

Hugo L. Black:

Well, therefore, we do not agree with you on that (Inaudible)

But if we do not agree with you and we think the Court should have the same, as I do in it’s presence that the seizure was — could not be defendant is reasonable.

The question I’d like to hear you’ll argue is was there cases would then permit you to offer the evidence, those articles which you might have seized reasonably serious.

Kevin T. Maroney:

I — I — as I say, Your Honor I can’t give you a case.

I don’t know of any case where it has arisen.

But I don’t think that the fact that some things may have been or the Court maybe of the opinion that some things were illegally seized or unlawfully seized should affect the admissibility of the materials which were doubtedly seized pursuant to a valid and reasonable search.

I mean that — that’s the distinction I’m trying to make that the — the search here was reasonable.

Under these circumstances they could go through this house.

Hugo L. Black:

Suppose the search warrant — suppose there had been a search warrant, but to get down the — I think your argument which authorized the taking of everyone of these items that you took.

Let’s supposed that although you doubt I think (Inaudible) that they would have gotten one that authorized the taking of all of them and the Court held that the search warrant was bad because it is an unreasonable authorization for a search.

Could you then have offered any part of the things seized —

Kevin T. Maroney:

I — I think —

Hugo L. Black:

— on our cases?

Kevin T. Maroney:

I think so with respect to the material that was properly the subject of the search warrant and properly seized there under.

Hugo L. Black:

Have you any cases that you rely on to that?

There maybe —

Kevin T. Maroney:

No, sir.

I — I don’t know of any.

I — I’ve tried to read a great many of the cases and I know — I don’t know of any situation where the question has turned after a consideration or after a finding that a search was reasonable, that the seizure was unreasonable.

In other words, usually the case is turned on the question —

Hugo L. Black:

The case —

Kevin T. Maroney:

— that — that is searched.

Hugo L. Black:

The case I put to you is not dead.

It was where you have a search warrant which you have secured from an officer which authorizes a seizure of all these things in the house.

Hugo L. Black:

The Court reaches a conclusion that the search warrant is bad because it authorized an unreasonable search.

Could you then offer any part of the good seized in evidence under our case?

Kevin T. Maroney:

I — I would think not, that way.

I think this — this is a little (Voice Overlap) —

Hugo L. Black:

In other words, you couldn’t do it if you had a search warrant which was invalid which you say you could do it here without a search warrant.

Kevin T. Maroney:

Because — because here, I think under the cases of this Court Harris, Rabinowitz, the search was reasonable.

They had a right to go through the house, they right to — to review this material and to take whatever was proper to take.

The fact that other material may have been taken should not render that valid search invalid.

Felix Frankfurter:

What you’re saying is that — in the cases that have been here, the Court hasn’t drawn a distinction in its decision between seizure and search once they found that the search was lawful, it followed that seizure was all right.

I mean it took it as a matter of course, is that right?

Kevin T. Maroney:

I think so.

Felix Frankfurter:

In other words —

Kevin T. Maroney:

But I —

Felix Frankfurter:

(Inaudible) is not been made in the case that had been disposed of here, as far as I know.

Kevin T. Maroney:

This distinction?

Felix Frankfurter:

Yes.

Kevin T. Maroney:

I — I don’t think it has been made.

Felix Frankfurter:

I don’t mean to say (Inaudible) but I mean it has been assumed perhaps on the fact that the case — that the search was lawful as though the seizure was all right.

It’s not the way — what the case has come up to?

Kevin T. Maroney:

I — I think so, but I think that all those cases of course are distinguishable on the facts that are presented by this case by — by —

Felix Frankfurter:

I think they are in those cases.

Kevin T. Maroney:

I see that my time was just about up and —

Felix Frankfurter:

May I ask you one question —

Kevin T. Maroney:

Yes, sir.

Felix Frankfurter:

— about, which I am wholly ignorant you surely know.

Was there any — was there any statutory provision or — in the old — in the prohibition days, one would padlock an elicit place.

Is there any general provision whereby, in a situation like this, you would have a comparable, the Government has comparable power of seeing that no damage is done or that no intruder has come in and see?

Kevin T. Maroney:

I don’t know of any such provision, Your Honor.

Felix Frankfurter:

Padlocking in this prohibition cases is a special statutory thing?

Kevin T. Maroney:

Right.

Felix Frankfurter:

There is no such.

Kevin T. Maroney:

I know —

Felix Frankfurter:

A counterfeiting place.

Suppose the Government raid a counterfeiting place, can it somehow or rather safeguard the place or station an enforcing officer, the Secret Service, I’m talking technically, the serviceman outside?

Well never mind, I thought you might know.

Kevin T. Maroney:

It maybe a provision to that on those special statutes such as — from the (Inaudible) and things of that sort.

Earl Warren:

Mr. Leonard.

Norman Leonard:

If the Court please, I think perhaps I should first try to clear up this matter of those motions to suppress and what happened to them.

If the Court will examine the record at page 22, it appears that on March 26, 1954, Shirley Kremen filed a motion to suppress.

This is one of those in the series and she specifically refers, it appears on page 22 to the books, papers closing documents and other tangible objects which were taken from the residence which was then and there list (Inaudible).

Now, on page 89 of the record, that motion is called up for a hearing, motion to suppress evidence and that’s the motion on April 5th, 1954.

Now following the record through if we turn to page 139, we find what happened to that hearing.

Cunsel says there is a minute order in the record indicating a stipulation to take it off calendar.

I don’t know how it got into the record because what happened is reflected at page 139 that the conclusion of the technical testimony that day, the matter was continued till the next morning.

A witness apparently weren’t available and you will see that it was further continued until 9:30 o’clock a.m. on April 13th.

That explains those minute entries that showed that on April 13th, the motion was heard.

If you turn to page 164, you will see that on April 13th, there were further proceedings on the motion to suppress, pursuant to the continued.

Felix Frankfurter:

Where is that?

Norman Leonard:

Page 164.

It is — it is true that the trial had started the day before (Voice Overlap) consciously suspended the trial for one day to continue further proceedings on the motion to suppress because the witness hadn’t been available and you will see the statement of the Government Attorney, Mr. (Inaudible).

If Your Honor please, the Government has agreed to provide the witnesses, here they are and we go ahead.

And his witnesses were not the witnesses solely to the Blau motion because he goes right on ahead and talks about a witness having information concerning matters at the Twain Harte cabin, that was Ericsson.

And that both motions were heard that morning and that explains Judge Goodman’s ruling in the minute order that the motions — motions are denied, they were both — I think if Your Honors —

Harold Burton:

(Inaudible) that they are denied.

Norman Leonard:

That appears on page 73, the Court made the minute actually there, Mr. Justice Burton under the date of April 13th, further hearing on motions to suppress evidence, et cetera.

After argument, each of said motions was ordered denied, page 73.

Felix Frankfurter:

Is that — the clerk does that, doesn’t he?

Norman Leonard:

Excuse me sir?

Felix Frankfurter:

That’s a clerk entry is it not?

Norman Leonard:

Yes, Your Honor, certainly.

Felix Frankfurter:

All right.

Norman Leonard:

I suppose that Judge Goodman tells the clerk.

If Your Honor please the — Your Honors please the matter of this memorandum that was filed by counsel — unless the Court desires me too, I don’t think it’s necessary to respond in — in — in those cases I looked at them last night, the motions were not made before trial as this record shows this four.

And in the (Inaudible) case I —

Felix Frankfurter:

The other way around Mr. Leonard, it appears that they were made in the midst of the trial.

Norman Leonard:

Exactly.

Exactly and this Court said in (Inaudible), “The objection to the seizure was plainly an afterthought.”

You can’t say from this record that our objection in seizure was plainly an afterthought in view of the fact that the Government didn’t raise this in its opposition to our petition for certiorari and didn’t raise it before Judge Goodman, I suggest nothing fictitious that this is plainly an afterthought on their part to prevent this Court from reaching the merits of this utterly unwarranted search and seizure.

Finally, in response to the question posed by Mr. Justice Black, I think the answer is clear.

I think counsel has conceded it that under the amendment, if the seizure or the search was unreasonable, there is no justification for them taking out something and saying it was reasonable.

Thank you.