Lambert v. California – Oral Argument – April 03, 1957 (Part 1)

Media for Lambert v. California

Audio Transcription for Oral Argument – April 03, 1957 (Part 2) in Lambert v. California
Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Earl Warren:

Number 590, Virginia Lambert versus The People of the State of California.

Samuel Carter McMorris:

May it please the Court.

Earl Warren:

Mr. McMorris.

Samuel Carter McMorris:

This is an — is appeal, substantially an attack upon the validity of what is known as the criminal registration ordinance.

Specifically, it is an appeal from the conviction of appellant herein and from her — from the sustaining of that conviction by the Appellate Department of the Superior Court of the County of Los Angeles for failure to register with the Police Department for a crime which she had been convicted four years before the date of her arrest which led to this case.

Our arguments, we based upon four different propositions.

First, that any criminal registration ordinance is unconstitutional and that it violates certain fundamental rights of American citizenship, which we will elaborate more at length.

Second, that if it is possible to concede of the validity in the abstract of a criminal registration ordinance, that the specific ordinance here involved is unreasonable and violates certain fundamental rights of citizenship.

Third, that assuming that the ordinance is not on its phase or not per se invalid and unconstitutional, that it has been so applied that under the rule of Yick Wo against Hopkins, it in — in essence and in procedural and in fact it has been made unconstitutional.

And finally, that appellant herein was denied her specific case of the benefits of many constitutional provisions.

Now, on the first hand, that any criminal registration is invalid.

The whole essence and content, and purpose of the criminal registration laws is to require that a person who had served his or her sentence or time, or paid the penalty of a crime against the State must thereafter register with the police or Sheriff Department where he or she lives, and must continue to inform that Police Department or Sheriff’s Department for the rest of his or her natural life in most cases of any change of address.

Now, this we submit is an invasion of the individual’s right of privacy, the right of freedom of locomotion, the right to be left alone.

Felix Frankfurter:

Would you be good enough before you get into the swing of your argument to turn to the actual provisions of the Act which you deemed unconstitutional and where it is?

Is it the Municipal Code of the City of Los Angeles that is bad according to your view?

Samuel Carter McMorris:

That is right, Mr. Justice Frankfurter.

Felix Frankfurter:

And is it — is it the California Penal Code set forth in several pages, the whole of it or some specific provision?

Samuel Carter McMorris:

Well, in the case of the — Mr. Justice Frankfurter, in the case of the Municipal Code Section 52.39 appearing on page 33 of our brief, we submit that the requirement of registration at all is unconstitutional but —

Felix Frankfurter:

The whole — the whole ordinance you think?

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

The whole Section.

Samuel Carter McMorris:

That we also will — will attack certain specific sections of it —

Felix Frankfurter:

All right.

Samuel Carter McMorris:

— which I will go in detail.

Felix Frankfurter:

All right.

What about — is that — is that provision of the Municipal Code — I don’t know anything about your situation out there.

Is that a home rule?

Have you — is that — is that a provision which the City of Los Angeles is authorized to make in carrying out some state statute or because it has code — code-making power?

Samuel Carter McMorris:

It would be under the general code-making power.

Felix Frankfurter:

Now, what’s the relation of that provision (Inaudible) to the Appendix B, the California Penal Code?

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Samuel Carter McMorris:

In my opinion, it is in conflict therewith.

The California Penal Code Section 290 is a limited registration of — of ex-convicts and — and is known as the sex offender registration, and I will point out the differences and the reasons why and what —

Felix Frankfurter:

So that our — your attack is on Section (Inaudible) and not on any provision of the California Penal Code.

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

Now, the fact that it is in conflict is not a matter for us, is it?

Samuel Carter McMorris:

No, I believe not, Mr. Justice Frankfurter.

Felix Frankfurter:

All right.

Samuel Carter McMorris:

Now, I might as a background before going into my argument, I might state that this is a case of first impression.

There is no opinion in any report, of any Appellate Department, of anywhere in the United States that I could find or that a respondent has found which either sustains or invalidates this particular statute or ordinance.

The only Appellate Department which to my knowledge has considered it is the — our own Appellate Department in the County of Los Angeles and its opinion in these cases and before though we have give it verbatim in — in our appendix.

It is not in — in any official report.

Would you mind stating the facts that give rise to the question to your argument?

What happened here?

Samuel Carter McMorris:

Now, I have planned to go to those soon as I get back at —

All right, on your own way.

Samuel Carter McMorris:

— if the Court — if you please, Mr. Justice Harlan.

Now — so this is very definitely a case of first impression.

Now, the — the highest court of — of resort in State of California, in the abstract sense, has not ruled on this case.

The Supreme Court has not ruled on it.

The Court of Appeals has not.

Under California law, the Court of Appeals in misdemeanor matters, the highest court of resort in the state is what is the trial court in felony matters to wit the Superior Court, which has an Appellate Department and which had the last word in the — this case.

Felix Frankfurter:

Is the — is the opinion to which you referred a minute ago, the one that’s printed in page 29-30 of the record?

Where is it?

Is that it, 29 to 30, that little memorandum opinion?

Samuel Carter McMorris:

That would be — that is it, Your Honor.

Felix Frankfurter:

And then you tried to go up to the — what is your intermediate — what’s the intermediate —

Samuel Carter McMorris:

We came immediately here, because under —

Felix Frankfurter:

Then you tried to go up or couldn’t you go up on this?

Samuel Carter McMorris:

No.

Felix Frankfurter:

Not at all?

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Samuel Carter McMorris:

Not — not — well, not after the Appellate —

Felix Frankfurter:

You can’t —

Samuel Carter McMorris:

— Department of the Superior Court.

We have one appeal —

Felix Frankfurter:

You mean you — do you mean that the Supreme Court of California has no certiorari upon a constitutional question?

Samuel Carter McMorris:

It has none, Your Honor.

Felix Frankfurter:

All right.

Samuel Carter McMorris:

And — and that was —

Felix Frankfurter:

I’m not —

Samuel Carter McMorris:

— the point I was giving for the Court’s knowledge that — that — I personally think that whenever a constitutional issue is raised that perhaps the highest state court should pass on that —

Felix Frankfurter:

Well, but it happens and so did —

Samuel Carter McMorris:

— before we come here, but it cannot — we cannot go there and just —

Felix Frankfurter:

All right.

Samuel Carter McMorris:

This — this is the Court of last resort.

Now, the — also, as a background for my argument and before going to the facts of the specific case, may I call the Court’s attention to a note in the University of Pennsylvania Law Review upon which much of the argument, both the respondent and appellants will be based.

I have cited it in my own brief of — it has been a source of leads, the arguments and the facts, I think of both sides in this case and therefore I think deserves mentioning.

Now, sometime before the year 1954, the Jacob Kossman, Esquire, the Philadelphia Bar established to fund in memory of the late Justice Wiley Rutledge.

And out of that fund, research was made by the University of Pensylvanica Law Review and they made — made a complete analysis nationwide of the criminal registration ordinance.

And I will refer to it from time to time as I have in my brief.

Now —

Felix Frankfurter:

I must — I must interrupt you again to ask you what that is, what is meant by saying in that opinion, which is the only — the only thing we have here.

She appeals from the order denying a new trial and attempts to appeal from the judgment, although there is no judgment, page 30.

However, she could have appealed from the order granting probation and we shall consider this as such an appeal.

Is there any question of —

Samuel Carter McMorris:

Yes, in California —

Felix Frankfurter:

That this is a final judgment for purposes of the federal jurisdiction?

Samuel Carter McMorris:

It is, Your Honor, because it is — the State takes file — should follow jurisdiction on an appeal and then we come — come here from the State’s — file an opinion from the State.

Felix Frankfurter:

Yes, I understand that it can be the law, it can be a justice of the peace to be final for that purpose of it, so far as the highest court to which you can go, but all this time that they — informal to me.

Samuel Carter McMorris:

Perhaps I can explain it to — to, Mr. Justice Frankfurter.

Felix Frankfurter:

Just to be from a judgment, although there is no judgment, but then we’d go on.

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Samuel Carter McMorris:

We have here a — what is in California court in a probation, which is not a judgment.

As a matter of definition, she was given probation with certain terms and condition, which I will also go into.

And — and there stated that a judgment is not imposed in many cases when probation is given, it may be later imposed.

It could be imposed the next day or the same day, but the point is that you can appeal from the judgment of probation — of probation because in a sense, it’s a final judgment.

Felix Frankfurter:

Well, I’m not questioning what you can do under California law.

I am interested very much whether it’s the kind of a judgment that is a judgment for our purposes.

However, don’t take your time.

Samuel Carter McMorris:

Here we go.

Now — so, now, the criminal registration ordinance I think unquestionably is an invasion of — of the person’s right of privacy, the right to be left alone, except when necessary in the — in the general public good, the right of freedom of locomotion.

Now, although there had been no case that’s directly in point, there had been several cases, including a case of this Court, which drew light upon the position which I take herein.

And I will call the Court’s attention to several of those cases.

One —

Earl Warren:

Mr. McMorris, don’t — don’t you think that in response to Justice Harlan’s question that it would be better for you to tell how you’d come here to this Court, tell the facts of your case and — and then after you have done that, why I — I think you’d be more ready to convince the Court of your position than to live us in the dark until — until the last of your — of your argument.

Samuel Carter McMorris:

Well, thank — thank you, Mr. Chief Justice.

Earl Warren:

I — I think you would —

Samuel Carter McMorris:

I’ll present the facts at this time.

Earl Warren:

— summon them in the Court at least would like to

(Voice Overlap) —

Samuel Carter McMorris:

Thank you, Mr. Chief Justice.

I’ll present the facts at this time —

Earl Warren:

Yes.

Samuel Carter McMorris:

— and I’m sorry.

Now, the facts of this case actually began in 1951 at which time appellant plead guilty to two counts of forgery based upon a single arrest and was given a probation, serving a portion of her time in the county jail and thereafter under supervision of the probation partner.

Sometime later, her attorney took her back to court and asked that she’d be removed from supervisory jurisdiction on probation and confined in jail for the period of her — of her probation.

Hugo L. Black:

Where did that conviction occur?

Samuel Carter McMorris:

It occurred in the Superior Court of the County of Los Angeles.

And her attorney — she wasn’t getting along with the probation officer apparently and her attorney took her back and asked she’d be confined.

It was her wish to be confined for — for a probationary period, the California’s peculiar rule, providing people to be confined for all the part of your probation.

Usually, you’re confined for part and then under supervision for another part.

In most states like Ohio, where I originally from in practice, either you do time or you do probation, you don’t do both, but California as to give the Court discretion to put you in custody for a portion of your probation as security effect.

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Felix Frankfurter:

Was there — what is the period of probation?

Samuel Carter McMorris:

It may vary anywhere —

Felix Frankfurter:

On this case.

Samuel Carter McMorris:

On this case, I —

Felix Frankfurter:

You say that her attorney then said she’d rather be confined than to be under surveillance?

Samuel Carter McMorris:

That’s right.

Felix Frankfurter:

And what was the time of her confinement?

Samuel Carter McMorris:

Well, so the Court didn’t put her — she’s been — then returned her to — to the county jail for a period of six months and — and indicated thereafter probation would expire without dismissal.

Now, under California law again, we have provision where if a person completes probation without having — have a violation thereof of — recognized by the Court, that probation is terminated and the case is dismissed.

That is the normal course.

In the appellant’s case, probation was terminated without dismissal, which is one of the reasons why they’re here today, had it been dismissed at that time she would not have been subject to this ordinance.

Felix Frankfurter:

But it was dismissed.

Samuel Carter McMorris:

It was dismissed without termination of the sentence.

Felix Frankfurter:

And what was her offense?

Samuel Carter McMorris:

Forgery.

Felix Frankfurter:

And — and what is the — it may become important to our jurisdiction.

What is the — the allowable punishment for that offense?

Samuel Carter McMorris:

I believe it’s 1 to 14 years, maximum.

Felix Frankfurter:

In other words — and that may become important as to what the consequences of — was there a formal conviction that she plead guilty?

Samuel Carter McMorris:

Yes, she plead guilty.

Felix Frankfurter:

She plead guilty?

So, there was a formal conviction?

Samuel Carter McMorris:

Yes.

Felix Frankfurter:

On the — on the both?

Samuel Carter McMorris:

Yes, Mr. Justice Frankfurter.

Felix Frankfurter:

And — and what consequences did that have apart from the fact that she could be in jail for a period and under probation?

Did it have any consequences to her not as a citizen?

Thereby, she’s seized to be a citizen?

Is she allowed —

Samuel Carter McMorris:

Sure they —

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Felix Frankfurter:

— is she allowed to have — is she denied voting thereafter?

Samuel Carter McMorris:

I am not —

Felix Frankfurter:

What are the consequences?

Samuel Carter McMorris:

I think that possibly —

Felix Frankfurter:

The reason I ask you — if I may so state is that this Court has held that the mere fact that a person has served this sentence because there’s nothing more to serve.

It doesn’t render a case moot and therefore beyond our jurisdiction as obtained provided that consequences of that conviction continue in all sorts of disability.

And therefore, I’m asking you to find out what’s the disability, what disability explode from that, which then satisfy the fact that you’ve got a real interest here to protect.

Samuel Carter McMorris:

Well, of course there are certain disabilities such as denial of voting rights as I understand, and which are — are ably annotated in the respondent’s brief and appendix thereto.

Felix Frankfurter:

That is as a result of this conviction, where she plead guilty, she can’t vote thereafter.

Samuel Carter McMorris:

That is my understanding.

Felix Frankfurter:

Well, that’s —

Samuel Carter McMorris:

It may be that the setting aside of it might restore that this is — this question I haven’t gone into.

Hugo L. Black:

You’re not appealing from there, aren’t you?

Samuel Carter McMorris:

No, we’re not.

Hugo L. Black:

Would you mind getting to the facts of the case she’d be charged with here?

Samuel Carter McMorris:

I’m — I’m making that for two, Mr. Justice Black.

Now, —

Hugo L. Black:

I’d like to hear it.

Samuel Carter McMorris:

Now —

Hugo L. Black:

What she’s charged with?

What she’s convicted for and what’s happened to her?

Samuel Carter McMorris:

I’m going right into that at this time.

Hugo L. Black:

In this case.

Samuel Carter McMorris:

Yes.

Felix Frankfurter:

Yes, but it’s important for me at least to know if there’s a case here and if there’s no living problem.

If she’s all clear then there’s no case here.

Well, what you have indicated is that if she’s denied her privileges of voting and is denied there opportunity to work for the State that — those are continuing disabilities, which makes this a live controversy.

Samuel Carter McMorris:

She was denied of those but — but we’re not appealing from that.

We are appealing from the fact that she had to register with the Police Department as a consequence thereof and —

(Inaudible)

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Samuel Carter McMorris:

No.

Tom C. Clark:

Does this case started afterwards after all that had happened?

Samuel Carter McMorris:

I want to get the background because it’s based upon the conviction.

The whole law is based from this conviction.

Now —

Earl Warren:

Well, Mr. McMorris, perhaps we could term it this way.

You — you don’t contend that she was convicted in 1951 of a crime, which does not come under this ordinance that you have — that you’re attacking?

Samuel Carter McMorris:

No, Your Honor.

Earl Warren:

All right.

Well then, why don’t you jump right from that to the facts of this case and let’s discuss that — those facts and the ordinance.

Samuel Carter McMorris:

Very well, Your Honor.

Now — Mr. Chief Justice.

Now, after having a probation, this — that’s important to the case.

In fact, it wasn’t terminated because as I point out later, the fact that — that she was — probation was terminated without dismissal becomes a part of the appeal and that’s why I’m going into that.

I mean, she did probation in jail and then thereafter, the probation was terminated without dismissal of the charges, which is a normal course in — under California proceedings.

That a person would no longer be amenable to the statute, but in her case, in that specific case, she was specially made liable to register with the Police Department, though she had a provision without a — without having them violated.

But now — thereafter, she was dismissed from prison, released from prison in 1952.

And three years later, in 1955, she was arrested.

She’s arrested in the manner which we have set forth in our brief here by a police officer who did not give her the calls of the arrest, did not permit her counsel.

I was with her at the time to discuss with her or to see her, took her to the police station that we point out in — in our facts, examined her including the inner parts of her person.

Apparently, searching for narcotics, though there’s no showing that he had any information relative thereto, found her in no violation of — of any — of felony or misdemeanor, checked back and found that she had not registered for the crime of forgery, which she has been convicted of four years before and therefore, held her for not registering as an ex-convict.

She had never been told she had to register as apparent here and was not given a chance to register an alternative to being arrested and — and booked for fingerprinting.

Now, she was convicted of that offense in a four-day trial.

In the first two days of which, the Court and I argued a constitutional law, and the next two days, we had the — the trial.

From the demurrer stage on, we argued that the statute is unconstitutional which requires registration for reason which I will go unto as soon as the facts are — are completed.

And second, that appellant had been improperly denied, certain of her constitutional rights, one to be free from unreasonable search and seizure, which is now the California law.

We became abreast with the federal rule in reference to our reasonable search and seizure in 1955 by the famous Kahan case, which is substantially, applies the rule of — previous with the federal court, which may not admit evidence obtained as a result in a reasonable search and seizure.

In fact, our — our law even goes a little further out of the Kahan case.

Earl Warren:

Does that have anything to do with the — with the constitutionality of this ordinance that you’re talking about?

Samuel Carter McMorris:

No, Mr. Chief Justice, but we have —

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Earl Warren:

Well, why don’t you — why don’t you stay for a moment on — on the facts and on the ordinance, and the question of whether that ordinance is — is constitutional or not —

Samuel Carter McMorris:

Well, it’s —

Earl Warren:

— as applied to this case.

I think if you don’t mix those Mr. McMorris, we — we will get along better.

Samuel Carter McMorris:

Right, Mr. Chief Justice.

Well, now, I think I’ve given — given the background of facts of the arrest and how — how it happened and — and the facts she was convicted of the crime, the failure to register before this crime of forgery four years before.

Now, therefore, it is our contention that the ordinance under which she was convicted is unconstitutional.

And at this point, I wish to cite several cases, which are — which are closely similar to that from the —

Earl Warren:

You haven’t told us very much about that ordinance or perhaps the terms of that ordinance would be pertinent to this situation.

What does the ordinance require, Mr. McMorris?

Samuel Carter McMorris:

The ordinance required that a person having been convicted of a felony, of any felony and certain density of misdemeanors.

Register with the Police or Sheriff’s Department if any, whether in a — in a municipality or — or outside of one, giving his or her name and address and also revealing all prior convictions wherever they may have been in any state, anywhere, the nature of it, how long they serve, what — what — all prior convictions.

Essentially, that is what the requirement of registration is.

In addition to that, the — there’s a big section of the ordinance, such other and further information as may be required by the Chief of Police for the purpose of aiding and assisting and carrying into effect the provisions and intent of Sections 52.38 to 52.43 inclusive.

Hugo L. Black:

May I ask you one other question about your facts?

Samuel Carter McMorris:

Yes, Mr. Justice Black.

Hugo L. Black:

I understand that if she was arrested for failing to register, that if she was tried for that.

Samuel Carter McMorris:

That’s right.

Hugo L. Black:

That was requested four days trial order.

Samuel Carter McMorris:

That’s right, Mr. Justice Black.

Hugo L. Black:

That is whether or not she could writ and was she convicted by the jury?

Samuel Carter McMorris:

She was convicted by a jury and —

Hugo L. Black:

All right, then what did the judge do?

Samuel Carter McMorris:

The judge thereafter placed her upon a three years probation.

Hugo L. Black:

Then that is — that’s the probation that’s referred to in the opinion of the Court on page 30?

Samuel Carter McMorris:

That is right.

Hugo L. Black:

In other words, the Court said that she could have appealed from the probation order in this case for failing to register, but that she hasn’t done that, but however, they would consider this an appeal in it.

Samuel Carter McMorris:

That is right, Mr. Justice Black.

She was given a three-year probation, monetary terms of which was a $250 fine.

Hugo L. Black:

And you say that that’s wrong.

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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Hugo L. Black:

You challenged the whole thing on the ground that the ordinance is unconstitutional.

Samuel Carter McMorris:

That is one of her challenges, Mr. Justice Black.

Felix Frankfurter:

Was she — was she also fined $250?

Samuel Carter McMorris:

$250.

Felix Frankfurter:

Was she fined?

Samuel Carter McMorris:

No.

She’s given a three years probation.

Felix Frankfurter:

But that’s — that’s my difficulty.

You stated again mainly with the fact that she’s on probation in this case is the kind of a judgment that we can review.

I’m not suggesting that it isn’t, but it’s essential to find out.

Samuel Carter McMorris:

Upon the condition that she pay a $250 fine and not become involved with the law in any matter for the next three years.

Felix Frankfurter:

All right.

Samuel Carter McMorris:

Now, and if I may go back to that point.

Now, one of the reasons why this case has never been appealed before, I think, is that it’s suggested in this manner.

First, this law has very little use.

It’s used and only isolate incidents which in itself is — is an evidence of misapplication, I think, and of discrimination.

Second, whereas in the few cases where it has been used, usually, the defendant is an indigent who cannot afford even to pay the nominal fine which is given and — or second, the — the fine is so small that — that there’s nothing to fight about in — in a sense except for of course one’s reputation and one’s feeling of injury.

In this case, fortunately for the appellant, she was employed by her counsel as — as his legal secretary.

So, the money, monetary aspect was not important.

Second, the fact that she was given such a severe sentence for this type of — of an offense, three years probation, where at the time of her trial, as the Court knew she had not been convict — she had not voluntarily committed any crime for four years, not just with forgery, since she was working for an attorney as legal secretary going to school at night, when this is merely a technical violation of ordinance which was generally unknown, was not known to me until this case arose.

And when the Court, knowing all this thing and furthermore, before the trial, we had expunged her record, so that it’s now being dismissed and set aside so that she no longer would have to register.

But in spite of all those things, the Court saw fit to — to impose a three-year probation, one of the conditions thereof was a payment of $250 fine which — and in — in of that condition that the defendant meant, no probation at all would refrain —

Felix Frankfurter:

I don’t — would you mind explaining what it is you had expunged?

Samuel Carter McMorris:

We had her original conviction of forgery under California law expunged by the Court, which had terminated without — without expunging the record.

Based upon what had happened in this arrest and — and the problems she was faced with just because it hadn’t been expunged previously, so that she just very technically came within an exception to the exception.

In other words, the law of Los Angeles provides that all ex-felons must register except those whose records have been expunged.

Because the Court had failed to expunge a record prior to her arrest, she was nominally guilty of the crime and was convicted thereof in — in the matter stated.

Yet, before trial, she had a record expunged, so the Court could not even make as a condition of probation that she’s arrested with the Police Department because she no longer — she no longer by the time of trial a month after the arrest —

Felix Frankfurter:

You mean — you mean at the time she was convicted that felony which required the — which — which required her to register and resulted in a judgment — that that judgment for a felony was gone?

Samuel Carter McMorris:

Have been expunged and dismissed, but not at the time of the arrest.

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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William O. Douglas:

Where does that appear in the record?

Felix Frankfurter:

As I understand —

Samuel Carter McMorris:

Yes, on page 19 of the record, if the Court please.

William O. Douglas:

19?

Samuel Carter McMorris:

Yes, beginning with note 2 on line 4.

Earl Warren:

On what page, Mr. McMorris?

Samuel Carter McMorris:

19 of the record, page 19 of the record.

Earl Warren:

19?

Samuel Carter McMorris:

Yes.

Line 4, note 2.

Felix Frankfurter:

Note 2?

Samuel Carter McMorris:

I mean, number 2.

William O. Douglas:

Then, that’s only very technically in violation of the ordinance?

Samuel Carter McMorris:

That’s right.

Felix Frankfurter:

Well, do I — if I understand you, then — then to me you have a much easier — I believe this case as it were.

So, I understand you that this petitioner had been convicted for a felony.

Samuel Carter McMorris:

That’s right, Mr. Justice Frankfurter.

Felix Frankfurter:

Under — under California — under the code, she would have to register because she’d been convicted for a felony.

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

But if — if her judgment for conviction, her sentence had been set aside what you call expunged —

Samuel Carter McMorris:

Yes.

Felix Frankfurter:

— then she doesn’t have to register.

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

And what you are saying is that although her conviction hadn’t been a conviction for felony, hadn’t been set aside at the time she was arrested, by the time the jury had to bring in a verdict in order to decide whether a crime was committed, she was no longer required to register.

Samuel Carter McMorris:

That is right, Mr. Justice Frankfurter.

Felix Frankfurter:

Is that what you’re saying?

Samuel Carter McMorris:

That is right.

It appears in the facts.

Felix Frankfurter:

Then why is she convicted for a crime that doesn’t even exist?

Samuel Carter McMorris:

The Court’s position was that at the time of her arrest which proves she had not had her record expunged.

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Felix Frankfurter:

If you don’t — but a person suffers in this case, only the view of the Court or district, the jury said, “You committed a crime.”

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

And at the time they say that, she didn’t commit a crime.

Samuel Carter McMorris:

Not at that time.

Hugo L. Black:

I presume what you — what you have against though is this, isn’t it?

The State of California’s highest court which had passed on it says that the statute made it a crime not to register and that the mere fact that after the arrest occurred, the crime was — a charge was made.

The charge for the first crime was set — the conviction was set aside.

It didn’t change that you — under California law, we must decide still the question that they have presented, I would suppose, whether this is not a different statute because you — you violated the statute as they construed ordinance, as they construed in evidence.

Samuel Carter McMorris:

That is right, Mr. Justice Black.

Hugo L. Black:

They construe it as applying to your case because at the time she was arrested, she was guilty at that time of violating that ordinance.

Samuel Carter McMorris:

That is right, Mr. Justice Black.

Felix Frankfurter:

Well, I should think there’s a general law that if a statute repealed — if there’s a repeal of a statute making something a crime.

The fact that she committed that conduct or guilty of that conduct, admitted that act, if that is no longer a crime at the time the jury comes to act on it in the Court unless you have any — a direct saving clause before and I suppose what has to be argued here that this very inferior court, this — the hierarchy of the judiciary, this — that we have to pass only on a statute which a court refers to in an appeal, has held without even considering the problem whether a conduct of which no longer is a conduct made of evil offense at the time the jury comes in is still a crime.

Isn’t that right?

Samuel Carter McMorris:

That is one of the issues, Mr. Justice Frankfurter.

And one of the issues of this —

William O. Douglas:

That’s a question of state law, isn’t it?

Samuel Carter McMorris:

Well, I think that — and I would’ve argued later that as reference to the specific facts that applied to appellant in this case.

That under California law we had a right to have a record expunged at the termination of probation.

That’s a right stated in Section 1203.4, also in the — in the appendix.

The statute says that a termination of probation without violation the Court must dismiss the case.

William O. Douglas:

That’s state law?

Samuel Carter McMorris:

That is state law but our position is that a failure to apply that, which was settled state law to the appellant on this case, was a denial of the protection of the law.

And — and because of that failure to apply to her and the denial of that protection, she was therefore exposed to this later arrest and conviction of — even though she had done a probation and without violation, it should have had the record expunged and the conviction set aside.

That’s one of the number of contentions that we make here.

Hugo L. Black:

You made that contention to the judge and he overruled it, didn’t he?

Samuel Carter McMorris:

That is right and the — and the Court of Appeals also, as part of my brief, the Court of Appeals.

Felix Frankfurter:

Well, I thought it couldn’t go to the Court of — could it go to —

Samuel Carter McMorris:

To the Appellate Department of the Superior Court.

That is — that is the Court of the Appeals in this case, the Appellate Department of the Superior Court.

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Charles E. Whittaker:

Now, this proceeding, however, did you say to vacate, to just — you say that the judgment of probation must be vacated if the period is served without violation?

Samuel Carter McMorris:

That is right, Mr. Justice Whittaker.

Charles E. Whittaker:

But isn’t it true that has to be done only upon application of the accused?

Samuel Carter McMorris:

I think that is right, Mr. Justice Whittaker.

Charles E. Whittaker:

And if that so, would that not have a bearing on the question raised by Mr. Justice Black, as to the date of the effectiveness of that action?

She has to apply and the courts, under no duty to act to vacate the sentence until there is the application.

Samuel Carter McMorris:

May I say this, Mr. Justice Whittaker?

Charles E. Whittaker:

Yes.

Samuel Carter McMorris:

That in normal course under California procedure, the minute probation is terminated, the probation department makes the motion for the — for the probation.

This is normal California procedure because these are — otherwise, the Court himself where there’s no probation involved, the Court himself will make the order.

But in this case, the Court made a specific order that the record not be expunged and that is a crux in my argument here.

We have a specific order which to me was not a lawful order and there has never been an order in my experience or — or knowledge that a record not be expunged, specifically, that we will not expunge this record without dismissal except in this case, which put her an exception to the exception.

In other words, the exception is you do your probation, you don’t have to register.

But the Court said, “Though you’ve done your probation, we are not going to dismiss the record.”

Specifically said that and I submit that that was a violation of — of California law in such a manner that it exposed her to a conviction of a crime which she had no knowledge or intent to commit, as we’ll go on to later.

And was a — and was a denial of equal application of the law because the Court did not take any affirmative action at all.

Whatever affirmative action the Court took, it should have been to dismiss rather than to order that it not be dismissed.But that is just one of our number of points, not the most fundamental one but I hope I’ve made myself clear that I think the Court was entirely — not just in error but with failure to apply the law equally, because probationers is not quite automatic.But as a manner of California practice, the probation officer will go to the Court and say, “Your Honor, this person has not been violated, will you set aside the record?”

And this court case, the Court said, “When you get out of jail, you will not be — have a case dismissed,” without dismissal with the words used in — in the record here.

So —

Charles E. Whittaker:

Of course, in that case as I understood you a while ago that when she came in and voluntarily took herself off probation, and surrendered herself for jail service, the Court then imposed this six months sentence and then she was no longer a probationer.

You couldn’t expunge that record, could you?

Samuel Carter McMorris:

If that were the case, Mr. Justice Whittaker, but it wasn’t.

It didn’t happen that way.

The Court continued her in probation.

That is under the California law.

You can stay in jail for your probationary period.

And that was her request to her attorney which is a matter of record here that — that I spend the rest of my time in probation and because the Court said that at the time of your — the — the release from — from probation from jail, the probation shall bear.

That shall then bear in spite at that time without dismissal.

It was not a matter of being violated and doing time rather than do probation but the question of during your probation in custody rather than — than perhaps take a chance on running above the law in the street, so you don’t have a job and you go to the Court and say, “Your Honor, I don’t have a job.

I know I’ll be put in jail for violation.

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Samuel Carter McMorris:

May I serve my time in custody?”

And the Court would not there — therefore hold you, no longer probation because you haven’t done anything.

It’s just a matter of going to the Court and say, “Your Honor, I’d rather do my probation.”

Normally, the lawyers argue, “Your Honor, may we have straight time and no time in jail on probation?”

In this case, the lawyer argued the other way that she’d be better off doing her probation in jail.

Hugo L. Black:

Why?

Samuel Carter McMorris:

Well, because —

Hugo L. Black:

Because it has nothing to do with this but that’s so extraordinary.

I’m —

Samuel Carter McMorris:

Well, in the first place, she wasn’t able to get — get a job because she was — she was a convicted person.

She was having a great deal of difficulty.

Her probation officer was — was threatening all kind of things.

Well, she said, “I’m going to straight to the Court and ask him to take me —

Hugo L. Black:

She decided jail was better than the probation.

Samuel Carter McMorris:

Rather than improvised probation.

William O. Douglas:

That she — she gets a food and lodging, isn’t that it?

Samuel Carter McMorris:

At least that and no violation of law.

That — but she specifically asked to be — to do her — whatever time she had on probation, to do that in custody.

And the Court along with her attorney’s suggestion and confine her to jail for the — for the duration of her probation, not in lieu of probation.

And that I think is important that she therefore should have had the record set aside and not the order without dismissal as it appears on the record here.

I’d like to go, however, into my contention that this specific ordinance is unreasonable, but first, as to the general unreasonableness of any criminal registration ordinance.

Let me point out that this particular law was panic legislation.

It was — as stated very ably in the brief of respondent which is quoted from this — from the registration ordinance of — in the University of Pennsylvania Law Review and I think it appears on page 3 as I recall it of respondent’s brief — sorry, page 19.

The historical background and basis for legislation require the registration of ex-convicts.

It is pointed out here that this legislation had its foundation in — in a law in the early 1930s with reference to criminal — professional criminality.

And this was one of the results, the registration ordinance.

Now, in the criminal registration ordinance note from which this background is taken, in a portion which is omitted, it — it also points out that the gangster laws are also the result of this period, of — of frustration and alarm, and ended up — a few of the laws which were passed, punish a person just for being criminals.

And — and the New Jersey law, which was set aside I believe by this Court of — of the gangster statute from New Jersey.

Well, Lanzetta against New Jersey, 306 U.S.451 was in that category.

A similar law in Michigan was held unconstitutional.

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Samuel Carter McMorris:

These were the gangster laws, which drew out of this period of concern and alarm about an alleged rise in criminality of this period.

Actually, this note on the criminal registration ordinance questions the factual background of that because it’s pointed out that actually, there was a decrease in criminality according to criminological figures, but that is not important to our consideration.

The fact is we have two types of law they drew out of the concern in — during 1930s.

One, were the gangster laws, which have been declared unconstitutional.

The other were criminal registration laws.

May I also point out that only five states have adopted our State’s, the criminal registration law, California being one, New Jersey, Illinois, Florida and Illinois.

Only 47 municipalities have adopted this type of thing.

The only major city other than Los Angeles is Philadelphia that has adopted criminal registration ordinance, the other not having found it necessary are useful.

Washington does not have one, New York, Chicago, nor of a major city have this type of ordinance, except for Philadelphia and Los Angeles.

And this I think is maybe considered the standpoint of how necessary or even how reasonable it may be.

It’s not a final determination I think it may be considered.

It has not been found necessary generally in the United States to adopt this sort of invasion into an — it ended the — the privately entered verdict has completely served the sentence.

And for the rest of his or her natural life, you must report to the Police Department, exposing yourself inherently to rouse the arrest and that’s — and the sort of thing to which police departments are so capable.

Recently, California has found it necessary to adopt the (Inaudible) case rule to stop police intrusion into individual privacy, as the federal court did some time ago in its law against a reasonable search and seizure.

Felix Frankfurter:

When you say California, I inferred from that as a California statute, you said this is — well, that is within the sweep of your general attack on this kind of legislature, is it not?

Samuel Carter McMorris:

That is right.

Felix Frankfurter:

Now, has the — the California Supreme Court has passed on its law, hasn’t it?

Samuel Carter McMorris:

That is right, Mr. Justice Frankfurter.

Felix Frankfurter:

And do we get construction?

Is there any light to be shed from the construction of the state law upon the kind of things that we have before us in this ordinance?

Samuel Carter McMorris:

Well, from the standpoint of unreasonable search and seizure, which I’m bringing up now.

General —

Felix Frankfurter:

Or this other question that we raised earlier, what happens if in fact the judgment of — the felony sentence had been lifted before the — the defendant comes to trial, is there any light on that in California?

Samuel Carter McMorris:

I have found none.

Felix Frankfurter:

Because if we get a light from them, from the Supreme Court, we don’t have to take what a law — what a very inferior court tells us about it.

Samuel Carter McMorris:

Well, I have found no light in that direction, Mr. Justice Frankfurter.

And now, in that particular point, but the point I’m getting at here is that this type of ordinance is inherently abusing and that it permits and encourages police intrusion in — into privacy of people’s — of lives after they completely served a sentence.

Now, this is distinguishable.

For instance, from the denial of the right of the privilege of voting, because voting is a privilege, not a right and — and that vote is sometimes taken away.

In fact, generally is taken away I think because of conviction of a felony.

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Samuel Carter McMorris:

But in this case, a person is required to be in constant touch with the police for the rest of their life, that all times their whereabouts must be known.

This is a restriction upon complete freedom of locomotion.

It is an invasion of their privacy.

Hugo L. Black:

Which statute are you talking about now as to that?

Samuel Carter McMorris:

It’s 2.39, Mr. Justice Black, which we’re attacking here.

Hugo L. Black:

(Voice Overlap)

when does it require them to report for life?

Samuel Carter McMorris:

Because —

Hugo L. Black:

What part of the statute does that in Section (Inaudible)

Harold Burton:

Except, it requires them to report and sets no time limit, isn’t that where they’re looking at?

Samuel Carter McMorris:

Well, the — there another section requires that thereafter — before every change of address, and that is Section 52.40 which — which because it’s immediately involved.

Once she’s registered —

Hugo L. Black:

But wait a minute, is that in your brief, (Inaudible)

Is that in your brief?

Have you —

Samuel Carter McMorris:

The point is made in my brief but the ordinance itself is —

Hugo L. Black:

Now, what about the ordinance?

Is it in your — either in one of the briefs?

Samuel Carter McMorris:

It — it’s in the brief of the respondent.

Hugo L. Black:

The brief of the respondent?

Samuel Carter McMorris:

On page 5.

William O. Douglas:

Page 5?

Samuel Carter McMorris:

Of — of the — of appellee’s brief, under —

William O. Douglas:

Of the appendix, you mean.

Samuel Carter McMorris:

Of the — of the appendix, I’m sorry.

William O. Douglas:

Page 5 of the appendix?

Samuel Carter McMorris:

Mr. Justice Douglas, yes, page 5 of the appendix.

Hugo L. Black:

52.40?

Samuel Carter McMorris:

That is right, which requires a lifetime notification of change of address.

A person convicted of a crime at the age of 21 and this girl was — will therefore have to — have to report to the police, the rest of her natural life, wherever they’re living.

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Samuel Carter McMorris:

So, they can therefore be immediately available whenever a crime is committed in the area of the — that is thought they might commit.

Hugo L. Black:

Why does it stay for the rest of their life?

Samuel Carter McMorris:

It’s an unlimited —

Hugo L. Black:

Yes.

Samuel Carter McMorris:

— and it says, “Shall within 48 hours after each change of each such change, whenever the convicted person changes his residence,” and there’s a question here that —

Hugo L. Black:

Is there no provision in any of the sections that indicates that sometimes this — you didn’t register to keep on reporting in?

Samuel Carter McMorris:

Only upon the — well, of — actually, a person’s record has been — has been expunged.

It’s the only — it’s the only exception to the rule.

But according in California, this case took position that they did not have to expunge the record of this particular party and it was only by the mercy of the Court based upon following this arrest.

Now, she’s able to avail upon the Court to dismiss her record because she —

Hugo L. Black:

Suppose — suppose she’s convicted in another state, where they do not expunge the record.

Samuel Carter McMorris:

They must register for life.

I follow that point, but I didn’t raise it because it did not apply directly to — to the appellant here.

But because — well, I wonder we’re the only state I know of that has this — or the — the one or two that have this dismissal provision.

Any person coming in the — coming into Los Angeles, many of the State must register for the rest of natural life.

Any person who does not have probation in California must register for the rest of natural life before any change of address.

And not only that, not just the reporting but you’ve got to give, and this is important, for our purposes here.

You’ve got to reveal all your past convictions of any felony, any place whatsoever, and under California’s habitual criminal statute, which I — which I have on my appendix here.

Since habitual criminality increases the penalty, my position is that you — you are required by this ordinance to expose whatever habitual criminality you may have and thereby you’re making admissions, giving leads, giving evidence as to habitual criminality and you thereby required to — to incriminate yourself by this particular ordinance.

Now, in other words, you don’t merely register and report, you also reveal your entire criminal background, making it possible to prosecute you as a habitual criminal.

That is one thing for Government to learn, through FBI records or otherwise of one’s habitual criminality.

It’s quite — another thing to say, “You must submit here in writing that you are a habitual criminal.

You’ve got admissions here in writing of habitual criminality.”

You’re requiring a person to prosecute himself because you have admissions and leads.

If I make you one example of a case which I defended of — a case I defended in which a man —

Earl Warren:

Mr. McMorris, before you get to —

Samuel Carter McMorris:

Yes.

Earl Warren:

— to that on the question of expunging the record, you’ve been — you’ve been putting a good bit of time on that question of expunging the record, but that applies in California only to probation cases, does it not?

Samuel Carter McMorris:

Only.

Earl Warren:

A man who has served a term in prison has no right and no opportunity to expunge his record —

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Samuel Carter McMorris:

That is right, Mr. Chief Justice.

Earl Warren:

— in the Court.

So —

Samuel Carter McMorris:

That is right.

Earl Warren:

So your argument goes to a special class of — of convicted persons because this woman was of this — of this particular class.

She had been given probation and did have the opportunity to expunge the record.

The vast majority of people who are convicted of felony and will go — will go to the penitentiary have no right to expunge the record?

Samuel Carter McMorris:

That is — that is right, Mr. Chief Justice, and I also point out that since the Court have ordered that she not be expunged, that she therefore came in the other category, because it’s only by a special dispensation of mercy that we were — we’re removed from being the exception to the — exception that does not have to register.

At the time of her arrest, we have — were just what we’ve only done parole rather than probation.

Felix Frankfurter:

Well, let me add —

Earl Warren:

Yes.

Felix Frankfurter:

— one more thing.

Although, it applies to special class in the — if you put on probation, as I understood your answer to Justice Whittaker, you said that automatically the probation agent moves for the lifting of the sentence, but that is not — that is not a compellable motion so far as the Court is concerned.

May the Court say no in this case, I think.

Samuel Carter McMorris:

I believe —

Felix Frankfurter:

Well, does the statute automatically require that if a defendant is convicted and then put on probation, thus — it isn’t automatic according to the statute, requires judicial action whether the sentence should be — says the judgment should be expunged, is that right?

Samuel Carter McMorris:

In my opinion, Mr. Justice Frankfurter, the use of the word “shall” in this ordinance which we have (Voice Overlap) —

Felix Frankfurter:

Well, I just want to know what your view is.

Samuel Carter McMorris:

My view is the Court has no discretion because —

Felix Frankfurter:

That’s — all right.

Samuel Carter McMorris:

— of the word “shall” —

Felix Frankfurter:

All right.

Samuel Carter McMorris:

In other words, he’s — he’s there as an administrative officer —

Felix Frankfurter:

(Voice Overlap) —

Samuel Carter McMorris:

— to find the facts, if the fact that this person have had probation and done it without having it violated.

Therefore, if that is the fact, then they must dismiss the case.

Hugo L. Black:

Has the Court held that?

Samuel Carter McMorris:

There had been no decision on that but there has been no decision contrary and — and the clear language —

Felix Frankfurter:

So the action in this case has been contrary.

The action in this case —

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Samuel Carter McMorris:

The action has been, but the clear language of the statute is that when it is found that a party has — have probation that was not completed for a period of probation, then the Court shall dismiss it upon motion therefore.

Felix Frankfurter:

All right.

Samuel Carter McMorris:

And this case, the Court prevented such a motion by saying, you shall not be dismissed.

Now, I think that the — the standpoint of having to reveal all evidence of past criminality is one of the things which makes this particular ordinance unconstitutionally, even if you would say that perhaps some criminal registration statutes might be reasonable.

Now, I — I further think that in order to be reasonable, the primary registration as it is an invasion of — of American citizenship’s — citizenship privileges as I see it.

I think it should be limited to a field of persons who have demonstrated perhaps their recidivism.

I mean one who was over — just like we have our — our habitual criminal statute.

I think if a person had proved himself a habitual criminal, perhaps to require such a person to register might be — might be reasonable.

Even there, I’d have certain misgivings because the requirement that you facilitate your own prosecution by letting the police know in advance where you are, to me is almost the same as saying to a man who commits a burglary or any other crime.

If you don’t leave your calling card, you could — you’re guilty of another separate offense.

Here we are requiring a person to leave a calling card in advance so the cops can find him the minute they want to for whatever they want them, whether they’re right or wrong and rouse the arrest, dragnet rage have resulted from this type of ordinance.

As it’s so ably pointed out in the University of Pennsylvania Law Review note, that has been the inherent result and in fact I think it was the intention of — and certainly, it had been the inherent result of an ordinance which permits this — this invasion in the privacy of people who want to be decent citizens, who’ve done their time, realized their mistakes, as in this case of appellant here.

Four years later, she’s going to school at night.She’s a legal secretary.

She’s forgotten her criminal past.

And there, — here, we have her now, you’re a criminal because you haven’t registered and let us know where you are and she wasn’t given notice.

Now, that is another point.

I think this ordinance is unreasonable.

The California Section 2 — California for the Penal Code Section 290, sorry, of the sex offender registration was passed in 1947.

At that time, it had no provision of notice to the intended registrants and didn’t work.

It was unreasonable.

It couldn’t possibly work because no one knew they had to register because no court or no probation officer told them, no warden in a penitentiary told them.

In 1950, the legislation amended our California Section 290, to make it much more readable and that it provides now that every person who the State wants to register must be informed in writing and must sign that they have that information, that — that we know we must register.

Now, there — there — it seems to me that a crime of omission such as this, due process requires prior notice and I —

Do you say the statute had been very infrequently used?

Are there any figures on it how —

Samuel Carter McMorris:

In —

— many people have been —

Samuel Carter McMorris:

Well, now —

— tried under it?

Samuel Carter McMorris:

In this — this law review note which I keep mentioning has indicated only 10% of the criminal’s generate where this law is applicable have registered, only 10%.

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Samuel Carter McMorris:

And as — as — and finally, I quote from a Solicitor General of Canton, Ohio, one of the cities where it is — we have one before the seven cities having ordinance.

We made two arrests over a period of two years relating to failure to register.

You see, what happens is this, there is no direct effort made to enforce the law.

It only comes into play when you’re arrested for something else and it is therefore found you have not registered.

I — I’ve never noticed a situation where the police would go down the record and say, “Here’s an ex-convict who haven’t registered.”

Let’s go out and arrest him or make him register.

It’s only when you’re arrested for some other cause.

And for that reason, the law is also unreasonable and that those who want to be law abiding will register.

Those who didn’t want to — want to be law abiding will not register because the law does not come into play until they’re arrested to say with some subsequent offense.

Therefore, it served no valid purpose.

It just interfered with the private lives of people who want to be a law abiding citizens, because if they can’t make registry, except while you’re on probation.

Therefore, those who wish to violate the law will not register and — and no one goes out to find to make him register.

It’s only if you get arrested for robbery, or burglary, or bookmaking or something like that, then you’ll say, “Uh-huh, you haven’t registered.”

So, that’s another separate offense which does not increase your time because — because you’ve been convicted in the other county.

Anyhow, when a person like this, like our appellant here who would — who have gone — who had been rehabilitated, would go and register because they don’t want to violate the law and do not intend, do not — in a sense have nothing to hide.

So — and yet, whenever a crime is committed in the category to be or expected to commit, they’ll be exposed to dragnet rage, dragnet arrest which has happened.

That has been the result, the adherent result of this type of ordinance wherever it has been.

And in fact, if I may quote again the — from — from this note that “That is one of the purposes which would either was had in mind or which the police recognized as a valuable ordinance like this,” referring to the adoption of the Los Angeles, California ordinance.

It was reported that District Attorney Berne Fitz and Robert B.Stewart, Chief Deputy District Attorney who affirmed the legislation, and Chief of Police James Davis, one of its chief supporters, declare that the very fact that dangerous ex-convicts will not register is the strength of the law.

Now, how did they happen to arrest this woman?

Samuel Carter McMorris:

It was one of the — a false arrest, I was there as the case indicates.

She’s working out — driving downtown to work.

We stopped to make two telephone calls.

On the way back to my car (Inaudible) the law library, a policeman standing in the corner stopped her and just started searching her, rolled up her sleeve, looking for narcotic marks.

No indication of why they did it because the girl certainly was not using narcotics and he searched her purse right there in the street corner.

She said, “What’s wrong?”

I’m right there.

I said, “Officer, what’s goes on here?”

Earl Warren:

We’ll — we’ll recess now.