Lewis v. United States

PETITIONER:Lewis
RESPONDENT:United States
LOCATION:Smith County Jail

DOCKET NO.: 36
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 385 US 206 (1966)
ARGUED: Oct 17, 1966
DECIDED: Dec 12, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1966 in Lewis v. United States

Earl Warren:

Number 36, Duke Lee Lewis, petitioner versus the United States.

Mr. Klarfeld.

S. Myron Klarfeld:

Mr. Chief Justice and may it please the Court.

The question presented by the Lewis case is whether or not the Fourth Amendment of the Constitution is violated when a government agent gains entrance to the home of citizen without a search warrant and by disguise and deception for the purpose of soliciting a crime and obtaining evidence to be used against him.

The facts briefly are as follows.

On December 3, 1964, a man by the name of Jimmy the Pollack telephoned to the home of the petitioner telling him that a mutual friend had said that the petitioner had some marijuana and that he, Jimmy, wanted to buy some.

The petitioner responded that the mutual friend had mentioned Jimmy and Jimmy thereby procured an invitation to the home of the petitioner for the purpose of obtaining some marijuana.

Jimmy the Pollack arrived at the petitioner’s home, went into the apartment, sat down, they discussed the price, made his purchase and prior to leaving, Jimmy the Pollack stated that if he was satisfied as to the quality of the marijuana that he would probably give Mr. Lewis a telephone call in a few weeks and return to get some additional marijuana.

Several weeks later on December 17, 1964, Jimmy the Pollack again telephoned the home of the petitioner and stated that he wanted some additional marijuana.

Again, he went to the home of the petitioner where he received his marijuana.

Almost five months later, on April 26, 1965, Jimmy the Pollack again showed up at the petitioner’s home, only this time, he came with a warrant for the arrest of Mr. Lewis.

Prior to the trial, the petitioner had filed a motion to suppress the evidence used to convict Mr. Lewis at the trial and that motion was seeking to suppress the evidence, admissions, and conversations which the petitioner alleged were procured in violation of his rights under the Fourth Amendment.

Jimmy the Pollack in reality was Mr. Edward Cass, an undercover agent for the Narcotics Bureau of the Treasury Department.

He was — he was called to the witness stand on the motion to suppress evidence and was asked the following questions and gave the following replies.

Question: At some time during your investigation prior to the arrest of Mr. Lewis, did the defendant Mr. Lewis become a suspect?

Answer: Yes, he did.

Question: Can you tell us when it time that was Mr. Cass?

Answer: Yes, sir, in 1963.

I bring this respectively to the attention of the Court and remind the Court that the two purchases which were made were made in December of 1964.

The defendant therefore was a suspect for over a year prior to a time when these two buys were made.

Question: On or about Thursday, December 3, 1964, did you communicate by telephone with the defendant prior to going to his home?

Answer: Yes sir, I did.

Question: Was the purpose of your telephone call on this date sir to inquire about a purchase of about a quantity of marijuana?

Answer: It was.

Question: On said dates, December 3, and December 17, 1964, Mr. Cass, did you pose as someone other than the federal officer that you are?

Question: Whether or not you represented your self to the defendant on those occasions, that you were Jimmy the Pollack operating a bar and grill in Rhode Island.

Answer: That is correct.

Question: When you went to the defendant’s home on December 3 and December 17, Mr. Cass, did you have a search warrant for that purpose?

Answer: I did not.

Question: At the time you went to the defendant’s home on December 3, 1964, did you suspect from information you had received prior thereto or based on your own personal knowledge or otherwise that the transaction might take place at the home of the defendant so far as the transfer of marijuana is concerned?

S. Myron Klarfeld:

Question: When you went to the home of the defendant on December 3 and December 17, Mr. Cass, did you not go there for the purpose of obtaining narcotics from him?

Answer: I did.

At page 31 of the record, the fact is disclosed that one, Richard Gold was the informer who had put the agent in touch with Mr. Lewis.

The petitioner waived a trial by jury as the facts were not in dispute.

The petitioner was found guilty and sentenced according to law and the conviction was affirmed by the Court of Appeals for the First Circuit.

Did the man take anything from the apartment other than the marijuana?

S. Myron Klarfeld:

No, Your Honor.

He did not, unless, you would consider the conversations an admission.

That’s all the case in the apartment.

Yes, Your Honor.

Earl Warren:

Was there any question of entrapment here?

S. Myron Klarfeld:

The question — the defense of entrapment was not raise at the trial court.

Earl Warren:

Were there any question as to probable cause for his going there?

S. Myron Klarfeld:

No, Your Honor, there wasn’t.

Earl Warren:

Or it’s simply a question as to whether in these circumstances, the officer had to right to go to the home and complete a sale?

S. Myron Klarfeld:

Without a search warrant.

That is correct, Your Honor.

Now, the petitioner’s argument for reversal is based on six brief grounds.

First, the circuit court in confirming the convictions relied on the case of the United States versus Pasquinzo, 334 Federal 2d page 74.

This was a Ninth Circuit case where the agent was in disguise but the purchase of the narcotics took place in a drugstore which is a place in business open to the public.

And I would like to distinguish that situation from the one that is presented before the bar this morning.

That would be alright?

S. Myron Klarfeld:

Yes, Your Honor.

Or that the purchase have taken place in the street?

S. Myron Klarfeld:

I would have no objections to it, Your Honor.

That is correct, Your Honor.

In addition —

Abe Fortas:

Suppose this has really been —

S. Myron Klarfeld:

Excuse me, sir.

Abe Fortas:

I beg your pardon.

Abe Fortas:

Suppose this had really been Jimmy the Pollack but all the other facts were the same but he acted as government informer, would that make any difference?

S. Myron Klarfeld:

No, sir.

Abe Fortas:

In other words, it’s not crucial in your analysis whether the person is a government employee or officer or a non-government informer?

S. Myron Klarfeld:

That is correct.

If I understand Your Honor correctly, this informer would be paid by the Government in —

Abe Fortas:

Suppose he was not?

S. Myron Klarfeld:

I beg your pardon?

Abe Fortas:

Suppose he was not paid by the Government?

S. Myron Klarfeld:

If he was not paid by the Government but simply volunteered to do this by himself and then subsequently had a change of heart and decided he would go to the Government and say I know of a man who has committed a crime, I would not have the objection that I have here this morning.

Abe Fortas:

Why is that?

Conceptually, why do you make that distinction?

S. Myron Klarfeld:

Well, because, Your Honor, I feel that the protection of the Fourth Amendment as I will set forth a little further in my argument precludes the Government either directly or indirectly through a paid informer of gaining entrance to the house in this manner and I would like to develop that a little bit further if I may Your Honor.

Abe Fortas:

You’re resting entirely on the law of the search and seizure by the Government or by somebody, some person might be as a government agent?

S. Myron Klarfeld:

That is correct, Your Honor.

In this case, the person who gained entrance to the home of the petitioner was a narcotics agent.

Earl Warren:

Is there any question in the case as to whether the petitioner had informed Jimmy that he was open to making sales there?

S. Myron Klarfeld:

Not a really a question, Your Honor.

The conversation as related in the record states that when the agent told the petitioner that a mutual friend had indicated that he had some for sale, the petitioner responded, “Yes, Jimmy.

He told me about you.

I think I might be able to help you” or words to that effect, Your Honor.

The Government has cited — excuse me.

Will your position be the same if (Inaudible) office?

S. Myron Klarfeld:

No Your Honor.

Oh!

Excuse me Your Honor.

From an office?

Yes, Your Honor, I think it was his office.

I maintain that if Mr. Lewis has done this on a street or in some public place, there would be no question here usually from my limited experience, Your Honor.

Most of the agents will make their buys in the street, in an agent’s automobile or some public place.

Only this time, the agent took a depart himself to go to the front door of the home of the defendant without a search warrant and that is the basis of the petitioner’s contention.

Potter Stewart:

I don’t quite understand your distinction because presumably on the street, somebody in the position of Mr. Lewis would have the narcotics hidden on his person car, wouldn’t he?

S. Myron Klarfeld:

He could have Your Honor, yes.

Potter Stewart:

And so why wouldn’t it be — if the Fourth Amendment is applicable at all, why wouldn’t it be equally applicable to something concealed on the defendant’s person?

After all, the Fourth Amendment protects us all in our persons, houses, and effects.

S. Myron Klarfeld:

That is correct, Your Honor.

Potter Stewart:

So that’s the reason I don’t understand your distinction.

In other words, if by deception, a government agent should induce somebody in the petitioner’s status to produce narcotics from a concealed place on this person I should think it’s precisely the same Fourth Amendment issue would be present as is present in this case.

S. Myron Klarfeld:

If I may digress from my argument for a moment to answer, Your Honor.

I feel in my heart that Your Honor is correct in the proposition that you stated, the Government ought not to participate in the solicitation of crimes in the obtaining of evidence in this regard.

But unfortunately, in this particular instance, due to the fact that the purchase took place in the home of the defendant, I find myself for the moment anyhow confined to that general area.

I truly feel there’s no distinction from what Your Honor has said but for the basis of this case this morning, I’m going to confine it to the home.

Hugo L. Black:

Your argument seems to me that if an officer does not tell the dope seller that he’s an officer, goes into his home to buy dope from him, he is an officer and he hasn’t told him.

Does that violate the Fourth Amendment?

S. Myron Klarfeld:

That is correct Your Honor.

If he goes —

Hugo L. Black:

Just because he doesn’t tell it.

S. Myron Klarfeld:

Well, Your Honor, there are several aspects to that.

That is part of my argument.

Hugo L. Black:

It is we are going to move it up now to where the government agents have to tell a man in advance that as an agent so that he won’t violate the law in their person?

S. Myron Klarfeld:

Well, I think it goes deeper than that, Your Honor.

I think where this agent had this information in advance and had already previously made arrangements to go to the home and make the purchase that under those circumstances, he should’ve at least applied for if not obtain a search warrant.

And I’d like to bring that on a little further in my argument.

William J. Brennan, Jr.:

What should they have done — what should they have done with the search warrant?

S. Myron Klarfeld:

With the search warrant, Your Honor, having previously arranged to go to the defendant’s home to procure the marijuana and if Your Honor will recall, I mentioned that he had information from an informer.

William J. Brennan, Jr.:

Yes, but my question is what would he do?

Would he execute the search warrant?

S. Myron Klarfeld:

He might very well have executed the search warrant and just said, “Where is it” or look for it at that particular time.

Or he may have kept —

William J. Brennan, Jr.:

Then there would have been no sale if he is executing a search warrant.

S. Myron Klarfeld:

No, Your Honor but then he certainly would be in violation of the law in possession of the narcotics without the proper forum.

William J. Brennan, Jr.:

Incidentally, I gather your proposition is, that even though the homeowner whether deceived or not has the government agent come in for the purpose of a homeowner committing a crime namely making a sale, for the purpose even so – do you think the Fourth Amendment to the extent it protects the privacy of the home.

S. Myron Klarfeld:

With all my heart, Your Honor.

William J. Brennan, Jr.:

Protect that situation?

S. Myron Klarfeld:

Yes, Your Honor.

I do.

Earl Warren:

Suppose this was a building, not his home — a building where he operated behind closed doors and only admitted those whom he knew, whom he thought he could safely sell narcotics to and we had the same deception that you speak of with that effect, would that affect your case at all or would it be the same?

S. Myron Klarfeld:

Well, Your Honor, I don’t know the answer to that truthfully.I think that it would be the same I think that is the line of reasoning the Justice Stewart has suggested to me this morning.

I must confess I don’t know the answer to that.

I think if the Government themselves originate and start the chain of events which leads up to something like this where they obtain evidence in disguise.

It’s something this Court has discussed at great lengths in many cases and that’s why I’m forced this morning to try if possible to keep myself in the home because if I get outside the home, I’m going to be (Inaudible) a little bit.

William J. Brennan, Jr.:

Well, we’ve never — we’ve had no case here, have we, that would suggest that if a homeowner invites someone into the home for the homeowner to commit a crime that the Fourth Amendment protects —

S. Myron Klarfeld:

There have been cases which you —

William J. Brennan, Jr.:

Have we had any in this Court?

S. Myron Klarfeld:

There have been some that have been close, Your Honor, if I may use the term.

William J. Brennan, Jr.:

What?

S. Myron Klarfeld:

Well, the Cook versus the United States was a situation where an agent was going — an informer was going to buy some bootleg whiskey and they put the agent in the trunk of the automobile while the other one drove the car into the landowner’s — inside his fence and the Court held that in following Gouled, that this was a type of a fraudulent entry into the home.

It’s the entry into the home procured by fraud if the petitioner appeals that the petitioner appeals.

William J. Brennan, Jr.:

You can hardly say that the guy hidden in the trunk had been invited by the homeowner to come in, would he?

S. Myron Klarfeld:

No, sir.

But the man who was driving the car was.

You see, the two of them were working together.

Byron R. White:

But you normally don’t think there is somebody going to be hidden in a trunk of the car?

S. Myron Klarfeld:

No, Your Honor, I don’t suppose you do.

But the — the Government has in their brief alluded to the Lopez case in opposition to the petitioner’s position.

I’d like to point out to the Court that in the Lopez case, the government agent from internal revenue went to the premises of the defendant asked the government agent to determine whether or not the operation of the café made it subject to the cabaret tax and why he was there in his official capacity, the defendant tried to bribe him and that was the crime for which he was convicted.

My second ground deals with the prior law in this particular point and I feel that the Lewis case is in line with the Gouled the Rakes case which is a Massachusetts case incidentally where a supervisor from the alcohol tax division went out to see his tenant farmer and said, “Hi!

The boss had sent me down to fix this still.”

Whereupon, the defendant said, “Alright, here are the keys, it’s in that barn over there.”

This type of a deceptive practice and the Rakes case also relied on Gouled.

The Cook case was the one I described with the agent in the trunk and in Gatewood versus the United States, 209 F.2d where the officers weren’t necessarily invited to the premises but they did knock outside the door of the defendants and when asked who’s there, the agents replied, “Western Union” and of course gained entrance by that type of a deceptive practice.

S. Myron Klarfeld:

And I would like to point out that the Government on page 19 of their brief states the shield which the Fourth Amendment directs around the home is designed to keep out unwanted intruders and if my history serves me correctly, Your Honor, in the beginning when the Fourth Amendment was drafted, the unwarranted intruder at that time was Government and I submit if the Government disguises itself, it’s still the unwanted intruder so far as the Fourth Amendment is concerned.

The disguise will not change the identity of the Government.

My —

Hugo L. Black:

Was this officer invited in?

S. Myron Klarfeld:

He had called.

He telephoned the home of petitioner first, Your Honor and said that he wanted to buy some marijuana and on the strength of that, he was invited over to the defendant’s petitioner’s home.

My third ground for reversal —

Hugo L. Black:

Did you say that —

S. Myron Klarfeld:

Excuse me.

Hugo L. Black:

— that the officer should have told you that he’s an officer?

S. Myron Klarfeld:

I beg your pardon, Your Honor.

Hugo L. Black:

If the officer had told him he’s an officer, he’s still have been alright, wouldn’t he?

S. Myron Klarfeld:

Well, if the officer had told him he was an officer, Your Honor, I’m quite sure, he wouldn’t have been invited.

There’s no question in my mind about that.

There have been no sale, no transaction and probably —

William J. Brennan, Jr.:

The only reason he invited him was to sell him marijuana.

S. Myron Klarfeld:

No question about that, Your Honor.

Hugo L. Black:

You — you don’t have proposition which protects people from officers who invited in there to break the law?

S. Myron Klarfeld:

I must respectfully disagree with Your Honor on that particular point.

I have covered that in the remaining section of my argument and I think that Your Honor will have an answer to that.

Hugo L. Black:

Wouldn’t it?

S. Myron Klarfeld:

I don’t think so, Your Honor.

Hugo L. Black:

Well, it would protect him here if he invited him in and you want to buy this and use of this as evidence, that would certainly protect him, wouldn’t it?

S. Myron Klarfeld:

Well, Your Honor, the Fourth Amendment protects the individuals I think in their home and that protection must be equally extended to the innocent as well as the guilty.

I can’t determine in my own mind how we could divide and say in one instance we will give the homeowner the protection of the Fourth Amendment and in another instance because he’s a criminal or he’s up to some evil deed, we won’t give it to him.

Now, he’s going —

Hugo L. Black:

But he didn’t break in, he just went in on his invitation.

S. Myron Klarfeld:

Yes, Your Honor, but he is an officer of the Government.

He had ample opportunity and time to get a search warrant.

He waited for five months until he arrested him.

S. Myron Klarfeld:

I think under these circumstances —

Hugo L. Black:

But does the five months have anything to do with it?

S. Myron Klarfeld:

Well, yes it does, Your Honor because I was getting to this third ground of mine which deals with the urgent emergency situation or under extreme circumstances, when a federal officer can go into a home and invade privacy without the benefit of the search warrant and so far this Court, has limited these circumstances to a situation where an agent is in hot pursuit of a felon and a felon runs into a home, you don’t need a search warrant to go in and get him.

When an officer is walking by someone’s home and this is shot and a cry for assistance the officer doesn’t need any warrant to get into the home.

I know of only five situations, and that doesn’t mean there aren’t any more where an officer can get into the home of a citizen.

If he has an arrest warrant, a search warrant, if he’s in hot pursuit, if we have the urgent emergency situation, or if he is invited into the home.

These five situations are the past type situations and to this moment I don’t know of any other circumstances.

Earl Warren:

How about if he had probable cause?

S. Myron Klarfeld:

Well, I think that if — that if there was a crime to be committed in his presence, if that would be the probable cause to go in Your Honor, yes.

Earl Warren:

Well, I thought you said there’s no question of probable cause here because a man was invited in whether it was through deception —

S. Myron Klarfeld:

But he didn’t go there for the purpose of arresting him Your Honor.

You see, he didn’t go there for the purpose of arresting him.

He went there for the purpose of getting evidence.

And he did not arrest him.

He waited five months and then got an arrest warrant.

Earl Warren:

Couldn’t he — couldn’t he go on there to search the place for the instruments of crime if a man said, “Yes, come on to my house.

I think maybe I can take care of it.”

Wouldn’t that indicate that there was some narcotics there that he expected to use in the commission of a crime?

S. Myron Klarfeld:

Yes, Your Honor and if he had arrested the defendant at that time, there would be no case before this Court today.

There would be no question about it.

He could make a search.

Earl Warren:

They wouldn’t have the marijuana?

S. Myron Klarfeld:

That’s probably very true also, Your Honor.

As I said before, the petitioner urges for his third ground that this situation does not fall within the emergency situation or extreme circumstances whereby an officer can go into the home without a search warrant.

My fourth ground deals with the classes of cases which are considered doubtful situations.

In the McDonald case, Mr. Justice Douglas, I think indicated that when there is a doubtful situation as to whether or not probable cause exists that resort should be made to a search warrant in order that a decision of a magistrate and not that the police may govern as to when privacy may be invaded.

This was most adequately set out in the Jones and McDonald cases and I think this situation certainly was not a situation which would step outside of this particular category.

I urge this Court to consider that the application for the search warrant should have been made.

My fifth —

John Paul Stevens:

You admit that this probable cause —

S. Myron Klarfeld:

I beg your pardon, Your Honor.

John Paul Stevens:

You admit that the there’s reasonable ground for search warrant, do you?

S. Myron Klarfeld:

Absolutely, Your Honor.

Absolutely.

No question about it.

My fifth ground deals with the separation of powers doctrine as the safeguard to the police state.

The Government has the right to use informers and this particular question is not an issue here now.

But the Government has argued and urges that to outlaw what I have choose to call a sneaky peek method of getting into the home would immunize criminal activity in the home.

However, the McDonald case which had been relied upon by the Government at page 27 of their brief dispels any fears in this regard.

Here it was said that the presence of a search warrant serves a high function absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police and this was not done to shield criminals nor to make the home a safe haven for illegal activities.

It was done so that an objective might waive a need to invade the privacy in order to enforce the law.

The right of privacy was deemed too precious to be entrusted to the discretion of those whose job is the detection of crime.

And finally, my sixth ground deals with the result of legalizing this type of entry by deception.

If the Government seriously contends that striking down this kind of intrusion will immunize crime in the home which you cannot and will not, we should hear the Government’s response to what I am about to say next.

I am compelled to point out to this Honorable Court that if the police power is enlarge to permit this type of conduct on the part of the Government, then the people of this great land innocent or otherwise could never be certain that the postman, the priest, the rabbi or some repairman coming into the home was not a government agent bent on spying into the home or into the private affairs of its occupants.

Just think of the great distrust of our Government this situation will create.

What will a father or a mother think when their children bring home their friends or their dates, are these agents also?

Could not brothers then eye each other with suspicion?

This then is the real danger which we are faced unless this particular doctrine is eliminated.

Potter Stewart:

What’s so — what’s so wrong if my daughter brings home a friend and I sell him marijuana, shouldn’t I — shouldn’t I — now, what’s so bad about that if he goes and tell the police?

S. Myron Klarfeld:

That is not exactly what I had in mind, Your Honor.

Potter Stewart:

Well, that’s this case.

S. Myron Klarfeld:

My point is that if we enlarge the police powers to this extent, we open the door to this doctrine’s invasion into our privacy.

I don’t think as an innocent person I wouldn’t wonder whether or not my daughter is bringing home a date that this might not be an agent of the treasury department perhaps to see what the inside of my house looks like.

I don’t want to have this thought in my mind.

I want to know that I am safe in my home unless the Government has a proper warrant to come into my house and look for something.

A free people ought not to fear or be suspicious of their Government or his doings and to permit this type of intrusion will surely blast open a front door of the home and destroy the right of privacy bequeath to all of us by the framers of our Constitution.

For these reasons, Mr. Chief Justice and may it please the Court and in my proudest moment, I urge this great Court to reverse the conviction of Mr. Lewis and to continue to guard all of our rights as you have in the past as zealously as those who would seek to encroach upon.

Thank you.

Earl Warren:

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice and Your Honors.

I think the Court has the facts well in mind.

Let me comment very briefly in relation to the question the Chief Justice asked earlier as to whether there is any question of entrapment.

Counsel correctly pointed out to Your Honors that no such dissents was made and I would like to emphasize that on the facts of records here, none could have been advanced.

This is not a case in which the agent had leverage, exercise any pressures, psychological or otherwise or indeed a case in which he importuned the petitioner to engage in the transaction.

There was a simple telephone conversation in the course of which the agent said that he’s heard the petitioner had marijuana to sell.

Petitioner promptly indicated that he was disposed to deal.

There is not only that indication of his disposition to engage in the transaction but the fact later develops that he had the stock on hand, that he had marijuana in his home, confirmed the fact that he was a person who was already engaged in a course of criminal conduct.

So far as I know, no court has ever considered that an undercover agent, that is to say one who has concealed his identity as an agent is disabled by the Constitution or by any principle of law from testifying to criminal acts or admission which occur in his presence simple because he concealed his true identity and because the other party would not have done what he did if that identity have been disclosed.

Of course undercover agents and also accomplices who later turn state’s evidence have been used in literally thousands of cases from the time that our courts first began to operate.

Indeed the existence of informer statutes in this country goes back to the first Congress of the United States, the same Congress which enacted the Bill of Rights.

Although petitioner makes his argument primarily and perhaps almost exclusively in terms of the fact that in this instance, the transaction took place in the home.

I’d like first for a few minutes to examine the question quite apart from the home on the assumption for the moment that the transaction had taken place somewhere else say in the alley in back of the house.

Now, it seems clear to us that the Fifth Amendment furnishes no guarantee and I speak of the Fifth as well as of the Fourth that a person to whom I voluntarily speak and make an incriminating admission or whose presence I commit an offense will respect the confidence that I place in him by performing that act or engaging in that conversation.

The risk as the person to whom the words are spoken is an informer as Justice Brennan put it in his Lopez opinion is the kind of risk which is inherent in any human society, the kind of risk we take whenever we speak.

And by the same token, it seems to me that a thought or a spoken word is not seized in the sense of the Fourth Amendment when one of the positions of this petitioner voluntarily engages in a face to face conversation and engages in a criminal transaction.

In such circumstances, there is no invasion of the person of the petitioner.

In such circumstances, what he chooses to say and what he chooses to do is simply a means of furthering the criminal enterprises in which he chooses to engage.

In such circumstances, I would say he has parted with no secret for he acted in the agent’s presence precisely as he would have in the presence of any customer.

Now, petitioner’s argument seems to acknowledge implicitly what I’ve argued thus far but he says this case is different from the case which takes place in the — a transaction which takes place in the alley or in the parking lot or in the restaurant or in the bar because it took place at petitioner’s residence.

Potter Stewart:

Do I understand Mr. Spritzer you’re not talking about the Fifth Amendment?

Ralph S. Spritzer:

Pardon?

No, I’m talking about the Fourth Amendment.

Potter Stewart:

Oh I misunderstood you entirely.

Ralph S. Spritzer:

I spoke briefly of the Fifth Amendment and then said that I don’t see that there’s any better Fourth Amendment contention.

If the statement is a voluntary one not in the protection of the Fifth Amendment, then it seems to me also it cannot be said to have been seized from him in the sense of the Fourth Amendment here.

Abe Fortas:

Well, would you mind repeating how you disposed of the Fifth Amendment point and if you stated it, I didn’t follow you Mr. Spritzer.

Ralph S. Spritzer:

Yes, I was arguing that one who makes a statement relating to the commission of a crime in the course of a face to face conversation, intending that the words he speaks and the acts he commits be heard and known to the other party is not being compelled to make an admission in the sense of the Fifth Amendment.

Abe Fortas:

Well, that’s the waiver doctrine but it’s a plenty kind of a waiver, isn’t it?

And it’s a — he doesn’t know that the person whom he is talking is a government agent and that this person — part of the plan is that this person will use it to in a legal proceeding, a prosecution and legal proceeding against him so it’s a funny kind of a waiver, isn’t it?

Ralph S. Spritzer:

No, I wasn’t speaking of it in terms of a waiver.

I was saying there was no compulsion in such a case.

One may in —

Abe Fortas:

Well, does — you don’t have to have a compulsion to invoke the Fifth Amendment, to you that is a very little, how can spies to invoke the Fifth Amendment, you don’t have to have overt compulsion.

Here there’s deceit by the nature of things or no matter lawful or not it’s in an essentially deceitful situation in which a person in effect is invited, implicitly invited to make statements with the intention on the part of the auditor and lack of knowledge on the part of the speaker that those statements will be use to (Voice Overlap).

Ralph S. Spritzer:

There is no question that there is an element of deception in every conversation in which an undercover agent takes place.

This Court has never regarded such deception as constituting compulsory self-incrimination.

It has said rather that one takes the risk when one engages voluntarily in a crime knowing that he is committing a criminal act that the person in whose presence that act is committed or whose presence the admissions are made will not disclose it.

This is a case involving not invasion of the Fifth Amendment or the Fourth Amendment, but a case involving a breach of confidence and that is not lawfully protected.

That isn’t same as Harris.

Abe Fortas:

Well, that’s the issue.

Your statement doesn’t take it out of the area of being an issue and look at —

Ralph S. Spritzer:

No, I am stating a position and I think I am supported by every case the Court has ever decided on this point.

Let me refer to a few of the cases which clearly place this on issue.

Let me begin with On Lee, in the On Lee case, the friend who was in fact an agent came on to the premises.

That man was named Chin Poy and outside of course, there was another agent, unbeknownst to the owner of the premises who was listening in through a device.

This Court divided on the question whether the outside agent who had intruded through the electronic device could testify but no member of this Court had any doubt that Chin Poy, the government agent who entered the premises could have testified had he been called.

Reference was made the other day to Judge Frank’s dissent in the Second Circuit in the On Lee case and to the fact that Judge Frank had emphasized the protection to which the person is entitled in his home.

Now what was not mentioned about the Judge Frank’s dissent in the On Lee case was that Judge Frank was also quite clear that Chin Poy could have testified in this case and indeed he said that the Constitution provides no safeguard against errors in judgment as to the character of persons whom I admit into my home.

This Court then a few years after had the Trupiano case before it.

There was a case in which a government agent secured employment as the so-called mash man and went to work in an illegal still which was located on a private farm.

The detailed information which that agent obtained was relayed to other agents on the basis of which they obtained a warrant for the arrest of those operating the still.

And though there was division in the Court on a point which is not relevant here, the Court had no doubt in that case, all of the members of the Court, that the valid — that the arrest warrant had been validly obtained.

Abe Fortas:

I have forgotten, in Trupiano, was there also an electronic device?

Ralph S. Spritzer:

No, there was not.

The question on which the Court divided was whether the ancillary search was within proper confines or extended too far, the search incident to the arrest and finally I would mention the Lopez case itself which has been discussed several times in these three cases.

In the Lopez case, a separate argument was made that quite apart from the use of the electronic device.

There had been a deception when the agent went into the office of Mr. Lopez and the deception it was charged was that the agent had indicated a willingness to accept the bribe and had he not indicated that willingness, he wouldn’t have been admitted and the man wouldn’t have put some money on the table.

And the Court and I think this is true of all of the opinions of the Court refused to accept that contention.

It was rejected as shortly in the dissenting opinion as in the Court’s opinion.

Ralph S. Spritzer:

As I indicated earlier, Mr. Justice Brennan emphasized in his dissent that there is no constitutional objection to the use of an undercover agent and that the risk that a person with whom I deal may be an informer or may turn out to be an informer later or is acting on behalf of the Government that he is not what he pretends to be is a risk-inherent in human society.

Abe Fortas:

Do you think that you believe it makes any difference — I know this was subject to debate between majority in dissent in Lopez and what is your view as to whether it makes any difference that a recording is made of this conversation between the government informer and the defendant?

Ralph S. Spritzer:

Well, if it had been, none was in this case Your Honor I understand.

Abe Fortas:

Yes, it is.

As a theoretical manner whether one was made, does it make any difference to your view to the effect of the Fourth and Fifth Amendments?

Ralph S. Spritzer:

I would view that as a question quite separate Your Honor from the question of the legality of the entry and as to the admissibility of such a recording, the Government does indeed in those cases where the issue arises rely on the Lopez decision as was made there to Your Honor’s in the Osborne case recently argued.

I should mention the Gouled case upon which petitioner principally relies because it seems to me that that clearly points up an important distinction.

Gouled as we see it is a quite different kind of case.

There the Government employed an agent who was a friend of Gouled.

It was seeking information about Gouled on charges of fraud.

The agent went to Gouled’s offices ostensibly to pay a friendly call upon him.

The agent was admitted.

He engaged in conversation with Gouled and thereafter Gouled absented himself from the office.

Unbeknownst to Gouled and without his consent, the agent then went through his desk drawers, took some papers out, incriminating papers and pirated them away these were subsequently offered in evidence.

Now, it was in that context the agent doing secretly and without the owner’s knowledge something to which the owner of course did not consented that the Court concluded that there had been an invasion of the papers owned by the person who occupied those premises.

It was in that context that this Court said that regardless of the mode of entry the taking of the private papers was unconsented to and was unknown to the owner of the premises and constituted an invasion of his Fourth Amendment rights.

Now, in this case of course, we have situation in which the agent did nothing which was not known to the owner of the premises.

He was the intended listener when the statements were made.

He was the intended recipient when the marijuana was passed.

In closing, I would like to emphasize the breadth and the sweep of the rule for which petitioner is here contending.

I’ve indicated earlier that it is a completely noble contention.

To my knowledge it has no support not only in a decision of the Court that has no support so far as I know in any opinion of the single justice or judge but not only is it a noble contention but I would like to stress what is I suppose already obvious.

That if such a rule were accepted it would seem to me that for all practical purposes, no informant or accomplices or undercover agents could be used and that I think would indeed be a sweeping and unprecedented step, one which we think finds no justification either in the history of the Fourth Amendment or in the decisions of the Court.

Earl Warren:

Mr. Klarfeld.

S. Myron Klarfeld:

Mr. Chief Justice and may it please the Court.

There is nothing noble about the petitioner’s approach to this case.

The main question here is whether or not under these facts and especially where the Government had enough evidence and time to get a search warrant and failed to do so, it violated the petitioner’s rights under the Fourth Amendment when it gained entry to his home by fraud for the purpose of gaining evidence.

It is the fraudulent entry that the Fourth Amendment shields us against not too much what goes on in the house.

And I’ll ask the Court in making its decision please to keep this thought in mind.

This is the law of the Gouled case as was followed in Cook, Rakes, and Gatewood.

S. Myron Klarfeld:

It’s the fraudulent entry into the home by the Government and that I think is the question before this Court.

Abe Fortas:

Well, just a minute Mr. Klarfeld.

With the search warrant help, in getting of the search warrant, the usual sense anyway, the government agent did not conduct a search here.

Now suppose a government agent wants to go in and to talk to someone about a crime that’s been committed.

He knocks on the door, he’s invited to come in and he talks to the persons, and what develops, develops, doesn’t it?

If the federal agent, let’s suppose a narcotics agent or an FBI agent goes into the house and found any preconceived idea that the occupant of the house is going to tell him anything that will lead to an arrest, would you say that the search warrant — that search warrant would be necessary for the validity of the arrest in those circumstances?

S. Myron Klarfeld:

Well, before I answer Your Honor it’s not clear on my mind as to how this government agent originally got into the house because, Your Honor —

Abe Fortas:

The crime has been committed.

An FBI agent is investigating.

S. Myron Klarfeld:

Just investigating?

Abe Fortas:

Yes.

So he goes to the house of a neighbor, let’s say, somebody near the scene of the crime.

He knocks on the door.

The occupant says, “come in”.

S. Myron Klarfeld:

This is the neighbor, Your Honor?

Abe Fortas:

The neighbor, yes.

The FBI agent starts asking questions and pretty soon it develops that the person to whom he is talking committed the crime.

Now, would you say that no circumstances the entry into the house was unlawful or that the FBI agent cannot testify as to the conversation because it didn’t get a search warrant?

S. Myron Klarfeld:

I’m afraid before I could fully answer the question Your Honor that I have to say that if the agent went there to investigate about something that happened across the way, he would not have, in my opinion serve probable cause at the outset, at the moment of going in to the house to make an arrest of this individual under those circumstances.

I feel that this is a — I understand I think Your Honor’s purpose in asking and it —

Abe Fortas:

Well, suppose he had to take the second illustration.

There is a second — second question.

Suppose he had.

They thought maybe this fellow did it but he didn’t get a search warrant.

He goes to the house, knocks on the door, invited him, let’s suppose he has probable cause.

He is invited into the house and he then interrogates the occupant of the house and the occupant gives him facts that result in an arrest and the agent — well, is it your position that the agent cannot subsequently testify as to that conversation because he had probable cause to suspect the occupant but he didn’t get a search warrant.

He just relied upon the invitation.

He went to the door, knocked on, was invited in, that’s all that happened.

S. Myron Klarfeld:

Well, I feel under those circumstances, Your Honor if the occupant of the house knew when he invited this person into the house that this person was a government agent then he was dealing with him at arm’s length and like in the Lopez case, he took matters into his own hands.

He knew fully what he was doing with an agent of the Government and I think that is a distinction I could draw on this.

Abe Fortas:

And your proposition really is something more than the unlawful entry on the house.

What you’re saying is that a search warrant has to be obtained when a government agent wants to enter a premise — wants to enter somebody’s house in a disguise.

S. Myron Klarfeld:

Yes, Your Honor.

Abe Fortas:

And a disguise might create the necessity for the search warrant.

S. Myron Klarfeld:

Well, in part Your Honor but in this instance, I respectfully call Your Honor’s attention, there was ample time and ample evidence to get this search warrant and the failure to do so under these circumstances is one of the thrust of the petitioner’s argument, Your Honor.

Byron R. White:

Well, I wonder that he did get the search warrant whether your problem really would be solved because the source of the probable cause to get a warrant is the agent’s misrepresentation over the telephone when he talked to him on the phone and the invites him over because he really thinks he’s an ordinary potential customer.

Based on this conversation, the agent will search warrant, he goes to the door and executes it.I would think the owner of the house will say, “Well, your entry here is fraudulent as it can be because you lied to me.

The Government lied to me and I am — and in effect you’ve lied your way into my house.”

S. Myron Klarfeld:

Well, Your Honor, I agree with you in one instance.

That is to say if he has personal knowledge that the from another source, in this case from Ritchie Gold also his own personal knowledge because he made a phone call that the marijuana was in the house, he should have gotten the search warrant.

Now, the other —

Byron R. White:

Well, yes but what if he relies on the phone call for the probable cause.

He goes to get a search warrant and the magistrate and says what — what’s your probable cause?

Well, I just talked on the phone.

I was invited over to buy some marijuana and well then the magistrate (Inaudible) to me, here is your warrant.

S. Myron Klarfeld:

Well, then the question becomes as to the sufficiency of the probable cause.

Byron R. White:

The cause is sufficient, it just happens to be barred by the Fourth Amendment on your argument.

S. Myron Klarfeld:

I wouldn’t say so, Your Honor completely because you see in addition to having personal knowledge the agent by making the phone call, he also had information from Ritchie Gold and this particular defendant had been a suspect for over a year prior to the time he went to the house, Your Honor.

I think under these circumstances even by extreme circumstances, the agent had more than enough information and probable cause to get the search warrant and I think his failure to do so by using this deceptive practice to get into the house to solicit some more crimes and get some more evidence is a violation of the Fourth Amendment in that respect.

Earl Warren:

Mr. Klarfeld, if your position is sustained, would it not be possible for all of the narcotic violators of the country to operate in a building where they had established a bed and a dresser and perhaps a few personal articles and call that their home and then operate inviting people to come there and then do so with a feeling of absolute security that no one who came to that establishment and dealt with him could possibly be one who is going to involve him with the law.

S. Myron Klarfeld:

Mr. Chief Justice, to answer your question, if all the narcotics people were to confine themselves to a single dwelling this would be the greatest boom to the Government law enforcement agents because if the Government points out in their brief 90% — that is prevalent and most of these sales takes place on the street.

They are scattered out all over the place.

If the dope peddlers got into their homes all the federal officers would have to do is to sit out in front of the house and like the farmer says watch the bee traffic and they knock off the whole thing immediately.

It would be the best thing in the world that could stop the narcotics trade if they can find their activities to one particular place and we knew where they were.

This situation that we’re presented with here isn’t going to help them a bit.

If anything, it’s certainly going to harm them.

Earl Warren:

Yes.

But your answer to my question would be that they could do that.

S. Myron Klarfeld:

They could do that but it would be the worst thing in the world for him because they would get caught.

Earl Warren:

Very well.