Mancusi v. DeForte

PETITIONER:Mancusi
RESPONDENT:DeForte
LOCATION:United States District Court of Maryland

DOCKET NO.: 844
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 392 US 364 (1968)
ARGUED: Apr 25, 1968
DECIDED: Jun 17, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1968 in Mancusi v. DeForte

Earl Warren:

Number 844, Vincent R.Mancusi, Warden, Petitioner, versus Frank DeForte.

Mr. Rauch.

Michael H. Rauch:

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

May I reserve three minutes in the event that I wish to rebut Your Honor.

Earl Warren:

You may stop whenever you wish.

Michael H. Rauch:

This case raises the question whether the taking of union records from union premises without a warrant and not incident to an arrest violates the Fourth Amendment right of a union official to be secure in his person, houses, papers, and effects.

The facts in this case are not complicated and they are not in dispute.

Briefly, —

William J. Brennan, Jr.:

But no Fifth Amendment issue here.

Michael H. Rauch:

The respondent has never raised a Fifth Amendment issue as such Your Honor.

William J. Brennan, Jr.:

Thank you.

Michael H. Rauch:

It’s our position as I — and I will get to that shortly.

It’s very difficult to separate the nature of Fourth Amendment rights from the nature of Fifth Amendment rights in this particular case.

Briefly, the facts are and I repeat, they are not in dispute.

The respondent was the vice-president of a Local Teamsters Union in New York City.

He was indicted by Nassau County grand jury in 1959, along with two other union officials and 12 other individuals.

They were charged with extortion, coercion, and conspiracy all in violation of the New York penal law.

The substance of the charge of the indictment was that the defendants were using the Local Union as a tool to establish an illegal monopoly of the jukebox and gaming machine industry in the metropolitan New York City area.

Additionally, that they were — through the mechanism of the Union, extorting from owners of such machines — money from owners of such machines by compelling payment of tribute disguised as Union dues, initiation fees, and assessments.

Shortly, prior to the return of this indictment, the Nassau County District Attorney issued a subpoena for the books and records of the Union, calling for these books to be produced at the District Attorney’s office.

This subpoena was served upon — served at the Union offices in Manhattan.

Their union offices I believe were on 42nd Street in Manhattan.

It’s been stipulated or conceded in this case that the union office consisted of one large room in which several of the union officials and employees had desk including the respondent in this case.

And the subpoena was served at a time when the respondent was present in these offices, other people were also present.

The respondent refused to comply with the subpoena and upon his refusal the police took the union records over the objection of the respondent.

There is no claim that any of these records were taken from the respondent’s person or from his desk or from any other place which was set aside for his personal use, nor is there any claim that any of his personal property was taken.

Solely, union records were taken and these included such things as minutes of union meetings, applications of prospective members, union charter, deposit slips.

And I should say also that many of these are items and this is also conceded here, many of these items were at least in part prepared by the respondent here in his role as an officer of the Union.

And again, most of these items, a large portion of these items were introduced into evidence over objection at the trial — at the joint trial of the respondent and the 14 other defendants.

The respondent was — I should add that that trial took several months.

Michael H. Rauch:

The respondent was convicted in 1960.

His appeals in the New York State Courts were heard after this Court’s decision in Mapp against Ohio.

And the New York Court of Appeal — the New York Courts considered his claims that his Fourth Amendment rights have been violated by the taking of the union records.

And they held that the search and seizure of the union records did not violate any of the respondent’s Fourth Amendment rights.

This Court denied certiorari in 196 — in October of 1963 and that the respondent began serving his sentence of three to five years, most of which is by now completed.

In March of 1966, the respondent applied to the District Court for the Western District of New York for a federal writ of habeas corpus claiming among other things and this is the only claim in this case that his Fourth Amendment rights have been violated by the search and seizure of the union records.

The District Court agreed with the unanimous conclusion of the New York Courts that no personal rights of the respondent were violated by the search and seizure of the union records and denied the writ.

On appeal, the Court of Appeals for the Second Circuit reversed and issued the writ and this Court granted certiorari in January to review, as I said before, the question of whether this particular search and seizure violated the personal Fourth Amendment rights of this defendant — of this respondent, to be secure in his person, houses, papers and effects which is the language of the Fourth Amendment.

The language which this Court has said many times since the 19th Century in Boyd against United States, that the purpose of this language was to protect the sanctity of a man’s home and the privacies of his life from unreasonable intrusions by the Government.

Abe Fortas:

Apart from the question of whether the respondent has standing to assert the Fourth Amendment infirmity here, do you concede that the seizure of the books pursuant to a subpoena was unlawful?

What is the New York law in that they are — if the police were given a subpoena to serve, they go to a place and the person refuses to turnover the books called forth by the subpoena, remember, we’re not talking about a search warrant.Have the police got the authority to take the books and bring them in?

Michael H. Rauch:

That’s not my understanding of New York law, no Your Honor.

Abe Fortas:

But that’s what happened here, isn’t it?

Michael H. Rauch:

That’s what happened here and I do not try to justify what happened in this case in terms of a proper execution of the subpoena here.

Abe Fortas:

So what we have here is a situation that is conceded, they are clearly the unlawful use — the unlawful seizure of books pursuant to a legal paper, a subpoena that did not authorize the seizure of the books?

Michael H. Rauch:

Well —

Abe Fortas:

And the question is whether this respondent has standing to assert the infirmity, am I right?

Michael H. Rauch:

That is the question although I would submit that the term standing is itself a shorthand expression for a description of whether or not this was an unlawful search in terms of this particular individual’s Fourth Amendment rights.

Abe Fortas:

Yes, I agree.

I think the word standing is subject to some (Voice Overlap) —

Michael H. Rauch:

But except for that, what you’ve said is correct.

William J. Brennan, Jr.:

Well, then I gather that — that’s to say we can treat it as if there were no subpoena in the case at all?

The police had just gotten in and grabbed these books and brought them in would still have the same issue here as you see it we have in the presence of the subpoena?

Michael H. Rauch:

I believe so Mr. Justice Brennan.

It is our position here that the respondent has failed to show that the search and seizure of the union records violated his personal rights either in terms of the items which were taken, or in terms of the place from which they were taken.

Byron R. White:

Well, it would be the same issue if he had refused to turnover the books and records pursuant to subpoena and then the decisions had gotten to the Court for an order and he had said, “This violates my own rights”.

Michael H. Rauch:

Well, it’s my position that his rights are no different if that had been what happened.

Byron R. White:

That’s right, absolutely.

Michael H. Rauch:

First, with respects — with respect to the items that were taken, that is with respect to the papers and effects clause of the Fourth Amendment.

The most obvious characteristic of these records is that they did not belong to the respondent and I emphasize that.

Michael H. Rauch:

He does not claim that they did nor did he have possession of these records in any sort of a personal capacity.

His custody and it appears that he was — in terms of his union role, the custodian of the records, his custody of the records were solely in his capacity as a union official.

It’s our position as Mr. Justice White indicated that this possession in this capacity gives rise to no personal privilege on behalf of this particular respondent.

And we believe the Court has so held in the case of United States against White, that even a union official who is charged with the custody of the union books and records, has no legally cognizable personal interest in such records, just as the Court has also held that a corporate official who has custody of corporate records has no legally cognizable interest in corporate books and records.

Earl Warren:

You make no point to the fact that this man was only a minor official or a general (Voice Overlap) —

Michael H. Rauch:

He was a vice-president.

Earl Warren:

It wouldn’t make any difference to you if he had absolute charge of him for the Union, would it?

Michael H. Rauch:

No.

I think it wouldn’t.

I don’t think it would under United States against White.

Earl Warren:

But his status has no relevancy in that — on this issue we have here.

Michael H. Rauch:

No, I think we can assume that he had as much status as a union officer could ever have like — he was the custodian of the books.

Earl Warren:

Yes.

Michael H. Rauch:

And I think under United States against White that’s irrelevant.

It’s our position in the absence of such a personal interest which this Court has said in the White case, this respondent does not have, there are no personal Fourth Amendment rights infringed by a seizure.

This is — this we believe is the import of the case of Jones against United States.

That is the first half of the Jones case, the half dealing with seized items as opposed to the half of the Jones case dealing with the place where item — from which items were seized which I will get to shortly.

Tom C. Clark:

I suppose the Union could have brought an action to compel the return of these records to it.

Michael H. Rauch:

I would assume so.

Tom C. Clark:

The Union as — it’s a non — unincorporated association and in New York because they have the capacity to sue?

Michael H. Rauch:

Well, I have foreseen it on the assumption that there is an unincorporated association and that it would have capacity to obtain return of the records.

It is possible for a union to become a membership corporation under New York law but I don’t — I wouldn’t think that would make any difference.

The point is though that there was no — to my knowledge, no formal effort made by the Union to obtain return of these records.

The respondent seems to take a position here and I assume the Second Circuit took the same position that there is something about the case of Jones against United States which somehow does away with the requirement that an individual objecting to a search and seizure demonstrate some personal interest in the items seized.

We believe —

Justice Marshalll:

Did the Second Circuit — didn’t the Second Circuit say that the determining factor was whether the search was aimed at the individual involved?

Michael H. Rauch:

I believe that that’s the crux of the Second Circuit’s decision, Mr. Justice Marshall.

Justice Marshalll:

What’s wrong with that?

Michael H. Rauch:

Well, what’s wrong with that is the —

Justice Marshalll:

They would have to this man.

Michael H. Rauch:

Well, first — in the first place, factually that’s not entirely correct.

He was one of 15 defendants that was indicted and tried in this case, so although they presumably were after him, he’s not the only one they were after and I frankly don’t know what they were after precisely in terms of what they thought the books and records would reveal to them.

Secondly and most importantly, and this is our — perhaps most fundamental disagreement with the conclusion of the Second Circuit.

We don’t believe that the personal rights of this respondent or of anyone who has custody of records or indeed of anyone else should be determined by whether or not he happens to be a suspect in the minds of the police.

I think there’s almost no other way to read the Second Circuit decision and there — that has absolutely nothing to do with the kind of personal rights that the Fourth Amendment we believe was designed to protect, either he had them or he didn’t.

And the fact that he was a suspect, it seems to us is irrelevant.

And —

Byron R. White:

The —

Justice Marshalll:

He agree that if they had taken from his desk his personal bankbook, that would have been bad, could not have been used, could it?

Michael H. Rauch:

I think not.

Justice Marshalll:

But if it is a bankbook that had his entries in but the bankbook was technically in the name of the Union, they could take it.

Michael H. Rauch:

Well, I’m not sure I understand what you mean by his entries.

Justice Marshalll:

Well, you said somebody — books were kept by him.

Michael H. Rauch:

He kept the books as — in his role as a union official.

The entries that were in the bankbooks are — for example, he signed most of the checks.

He cosigned most of the checks.

Justice Marshalll:

And if they’d been his personal checks, you couldn’t take it?

Michael H. Rauch:

I would assume not.

Justice Marshalll:

But because they were Union’s check, you could take it.

Michael H. Rauch:

That’s our position.

Justice Marshalll:

And either one would have equally incriminated him?

Michael H. Rauch:

That’s our position and we believe that United States against White for example supports it.

We also believe that the —

Justice Marshalll:

Well, what about United States against Jones, I don’t mean United States — the Jones case have —

Michael H. Rauch:

We also believe that the Jones case supports it, except in the narrow areas of possessory crimes which this is not.

Jones retained the assumption that an individual objecting to the seizure of property had to demonstrate a personal interest in the property seized.

All Jones did and it is our position, is create an exception in those cases where the defendant was charged with a possessory crime.

And the reason, I should point this out here, the reason for the exception is I read it in Jones is because of the intrinsic unfairness of placing a defendant charge with a possessory crime in a position of having to prove his own possession in order to object to the seizure of the item possessed.

We would submit that Jones goes no further than this in dispensing with the necessity of showing personal interest in the property seized.

But even more in the light of this Court’s recent decision in the Simmons case, I would seriously — which I take it solves most of the dilemma which that aspect of the Jones case was designed to meet.

Michael H. Rauch:

There’s certainly no reason for expanding this aspect of Jones which by its own terms was limited to possessory crimes.

I just would like to reemphasize that it’s the impersonal character of the books which refutes the Fifth Amendment as well as the Fourth Amendment privilege in this case.

The same reasoning which would refute the Fifth Amendment privilege, we submit should refute the Fourth Amendment privilege.

And this is without regard to the fact the respondent here participated in the preparation of these books and his role as a union official.

We believe that the same reasoning which this Court has used to say that his custody of the books and records as a union official gives rise to no personal privilege would apply to the fact the he may have prepared these books and records.

But the point is that —

William J. Brennan, Jr.:

I gather that — do I correctly read it that Court of Appeals of saying that had this been a legal seizure than under White, this respondent would have had no basis to complain, is that right?

But that because —

Michael H. Rauch:

I’m not — had been a legal seizure in that —

William J. Brennan, Jr.:

Had the (Voice Overlap) — the materials had been legally obtained?

Is that what the —

Michael H. Rauch:

Well presumably, we wouldn’t be here if that had been the case.

William J. Brennan, Jr.:

Well, I’m — what I’m — I was trying to figure —

Byron R. White:

But if the Second Circuit is right, the union official that charged the books like this respondent, the union official does not need to turn them over under this — in response to the subpoena.

He can assert his Fifth Amendment rights which the Second Circuit I take it would grant him.And if that the state goes to Court for an order to turn them over, he should be able to rely on his Fifth Amendment rights —

Michael H. Rauch:

Well —

Byron R. White:

Under the Second Circuit (Voice Overlap) —

Michael H. Rauch:

I don’t want to be in a position —

Byron R. White:

Because there is no way of a having legal seizure under this opinion, is there?

Michael H. Rauch:

I don’t want to be in a position of defending the Second Circuit’s decision Mr. Justice White.

I don’t believe that that’s — I don’t believe that the Court — at least, I don’t read it as saying that either a warrant couldn’t issue or the subpoena be enforced in the normal way under White.

I don’t believe it intended at least to —

Byron R. White:

Well, if it extends the — it just said, the gentleman has the right to assert his rights under these consequences, we — under these circumstances, why wouldn’t his —

Michael H. Rauch:

Well —

Byron R. White:

— Fourth Amendment rights apply?

Michael H. Rauch:

This — I under — I see what you’re getting at and this indeed is what we are getting at, that is that the rationale for the denial of the privilege under White, namely the character of the books, his lack of any personal relationship to them in the sense that it does not — they do not involve any element of the privacies of his life.

That same rationale and it is our position that it would, that same rationale should deny the Fourth Amendment privilege.

So in that sense, I suppose that the — logically, the decision of the Second Circuit would undercut the reasoning if — and indeed the result of the White case.

William J. Brennan, Jr.:

Well, I don’t follow that, not if I read — get the correct import of what I’m about to read to you, page 34 from the opinion, this still was of course was a privilege but nevertheless, it said that, “If these materials had been legally obtained, the Fourth’s — Fifth Amendment right against self-incrimination would not have prevented this evidence of being used against him,” relying in White.

But then, goes on to say by then, “Unlawful search cannot be justified on the ground that the evidence seized might have been obtained by other unlawful means.”

William J. Brennan, Jr.:

What I’m at — my question to you is, is this all turned in the Court of Appeals’ view on the fact that as they saw it, these materials were not legally seized.

Michael H. Rauch:

I think it turns on that fact as well as on the fact as Mr. Justice Marshall observed that the search was directed at this defendant.

But our problem with the decision of the Court of Appeals and this is why were here is because we believed that that decision ignored the rationale for the White case and by making the statement which you just referred to —

William J. Brennan, Jr.:

Yes.

Michael H. Rauch:

— we believe that undermines the rationale of the White case.

William J. Brennan, Jr.:

You don’t think that —

Michael H. Rauch:

That sort of beside the point, what they said there.

William J. Brennan, Jr.:

Yes, whether or not the privilege is involved or a Fourth Amendment right is involved, the same result should follow under White.

Michael H. Rauch:

Yes, I do believe that.

And I also believe that the Fourth — the Second Circuit merely assumed from one, the fact that there was no warrant, and two, the fact that the search was directed against this particular respondent that it automatically violated the Fourth Amendment.

I think it ignored this substance of the rights which the Fourth Amendment protects and in doing so, I think it also ignored the rationale of the White decision.

I think it is clear that the — at least under the White decision, that the books and records themselves were not privileged on behalf of this individual.

And the only way then that the respondent could legitimately claim that his Fourth Amendment rights were violated by the search, is if he comes within the persons or houses clause of the Fourth Amendment.

At the outset, we recognized as the Courts observed in the Katz case that the Fourth Amendment protects people and not places.

But it is important here to emphasize that this case does not involve in any sense the search of a person or of any place set aside for the respondent’s personal use.

Therefore, it does not involve as such the security of the respondent’s person, nor obviously does it involve a search of his home.

And it’s at this point that we get to the second aspect of the Court’s decision in Jones, namely whether the respondent has shown that he had a legally requisite interest in the premises in order to claim that an intrusion into those premises intruded into his Fourth Amendment rights.

Potter Stewart:

How did the Court of Appeals’ opinion deal with the White case?

Michael H. Rauch:

Well, I just — we just went through that.

They —

Potter Stewart:

(Inaudible)

Michael H. Rauch:

They — what they did —

Potter Stewart:

Just show me the page.

Just give me the (Voice Overlap) —

Michael H. Rauch:

Alright, I have it at page —

William J. Brennan, Jr.:

I think its 34, just in the Footnote in the petitioner’s (Voice Overlap) —

Potter Stewart:

Alright, fine.

That’s fine, thank you.

William J. Brennan, Jr.:

They’ve dealt with it only in the Footnote, that’s the only record presented with it.

Michael H. Rauch:

It’s page 41 of the appendix at the — in the Footnote.

Michael H. Rauch:

The Jones case, this Court held in substance that defendant who was entitled to use his friend’s apartment who had free access to that apartment was entitled to believe that the sanctity of the home and privacies of life extended to this place which was in effect an extension of his home.

We submit that there is no basis in this record for concluding that the Union premises were such a private place that in terms of the Fourth Amendment, it was tantamount to an extension of the respondent’s home.

There was nothing certainly to entitle him to consider the Union premises as a private personal enclave.

There’s nothing inherently private about these offices.

He shared this one large room with other people and it presumably was open to the public.

The use of this office was limited to his function as an officer of the institution.

And here, I would submit that the same rationale which denies him privileges and personal privileges in the books also denies him personal privileges in the premises themselves.

He should no more have a personal right in the premises because he has a right as a — in his capacity as a union official to be there, then he should have a personal right in the books because he has a right in his capacity as a union official to retain custody of the books.

I should say that the only really personal activities that the defendant is trying to claim were secluded here or his criminal activities which were used by which he used the Union as a façade for engaging in various criminal activities.

And we would submit that there is no more Fourth Amendment right to rely on the privacy or the secrecy of union premises to maintain the secrecy of his criminal activities, any more than that the defendant in the Louis case, decided recently by this Court, was entitled to the shelter of the Fourth Amendment with respect to using his home as a base for criminal activities.

I’d like to just deal with one other aspect of Jones which I think respondent laces his heaviest reliance on.

That is the fact that the respondent here was on the premises when the search occurred and Jones says — this Court said in Jones, that an individual who is legitimately on the premises is entitled to object to a search of those premises.

And the Court did in fact say that and this respondent was in fact “legitimately on the premises”.

I nevertheless urge this Court that while that standard, namely the “legitimately on premises” test may be a sufficient standard to test searches of homes or as in the case of Jones, apartments, is a singularly inappropriate guideline for cases involving searches of premises which are open to the public.

And particularly in cases involving searches of commercial premises which are open to the public in which employ many people.

In such cases, unlike cases involving searches of purely private premises, the mere presence, even if legitimate, carries with it no implication of any personal right of privacy.

We recognized as we must that business or commercial premises may be entitled to the protection and indeed are entitled to the protection of the Fourth Amendment.

The questioned raised by this case is on who’s behalf or such premises constitutionally protected.

It is our position and we urge it upon this Court that the “legitimately on the premises” test dealing with a — what was in substance a home in the Jones case, simply doesn’t answer this question.

We must look beyond this whether or not the objecting defendant is legitimately on the premises.

And when we do in this case, we submit there is nothing to justify the Court of Appeals’ conclusion that the search of these premises intruded upon the inviolability of the respondent’s person or upon the sanctity of his home or upon any place which could reasonably be considered an extension of his person or home.

And we submit that it is this test which must be answered before the Fourth Amendment applies in this case.

And when we apply this kind of reasoning, it — the inclusion of the Second Circuit that the respondent’s Fourth Amendment rights were invaded by the search is unsupportable and we urged that it be reversed.

Earl Warren:

Mr. Lekin.

James L. Lekin:

Mr. Chief Justice, may it please the Court.

My name is James L. Lekin and I am assigned counsel for the respondent (Inaudible) for the District Court and the United States Court of Appeals.

Earl Warren:

You say assigned counsel?

James L. Lekin:

Yes, Your Honor.

Your Honor, the illegality of the search is not in question.

The respondent takes three avenues of approach.

James L. Lekin:

Number one, Jones versus United States gives respondent standing.

Number two, Silverthorne Lumber Company versus the United States also gives standing.

And then number three and I think this is important, I think that the whole concept of standing perhaps should be reexamined by the Court.

I do not intend at this time to do so unless the Court wants to.

But I suggest it for this reason, that in the case of Simmons versus the United States, which was just handed down approximately one month ago in Footnote 12, involving the question of hearing evidence and allowing evidence on standing to go into trial.

Mr. Justice Harlan pointed out that the question of standing perhaps was examinable in the light of the fact that Linkletter versus Walker was predicated upon deterrence.

Approximately 10 days ago and after I had submitted my brief to this Court that I saw this case, but I refer the Court to Footnote 25 of my brief which says, “In which I argued before the United States Court of Appeals on a response to a direct question by Judge Kaufman who wrote the opinion, that counsel for the respondent suggest that because the Fourth Amendment is based on deterrence rather than self-incrimination, a complete examination of the “on the premises” test and the standing question is an order”.

This is also predicated upon Linkletter versus Walker.

And in this same Footnote, I cited the same Footnote — I cited the same law review article that Mr. Justice Harlan had cited.

I don’t know how far the Court wants me to get into this because that has not been thoroughly briefed, but I think it has absolute merit.

And I say this for this reason, that I have been with this case for approximately two years and I have nothing — I’ve had nothing but to occupy my time in the issue standing outside of the private practice of law.

And that it seems to me, there is great grounds to employ standing anymore if we’re going to have the deterrence rationale.

Because if deterrence is the jugular vein of the Fourth Amendment.

Then a — if a no legal search and seizure occurs, then why is it necessary to require someone who have a possessory interest or proprietary interest in the thing seized or the premises searched.

And I will end it at that and if the Court wishes to pursue it, I will respond.

As it is now, respondent comes before this Court and seeks the suppression of an outright illegal search and seizure of union books and records.

This search and seizure was conducted without any authority and the respondent in answering the request in the question of Mr. Justice Brennan does not rely on the Fifth Amendment.

I don’t see how we can rely on the Fifth Amendment because I think White, United States versus White and Wilson preclude our reliance on the Fifth Amendment.

And I think an answer to your question Your Honor, at Footnote 9, I think the Court is saying perhaps (Inaudible).

William J. Brennan, Jr.:

Do you mean in Judge Kaufman’s opinion?

James L. Lekin:

Yes, in Judge Kaufman’s opinion.

And this bothered the Court very much by the way and it bothered me as well, that if you have for instance, a situation where you have no Fifth Amendment right, what happens in relationship to the Fourth Amendment?

And of course, at the time that this was argued and at the present time right now, I think it presents to some extent a question that must be answered, I think the answer is obvious —

William J. Brennan, Jr.:

Well, could I ask you — do you think White has an issue with the Fourth Amendment?

James L. Lekin:

No.

William J. Brennan, Jr.:

White said — the opinion in White says that he relies upon the unreasonable search and seizure clause of the Fourth Amendment and the explicit guarantee of the Fifth Amendment.

We all know that neither the Fourth Amendment nor the Fifth Amendment —

James L. Lekin:

Your Honor, I think it has nothing —

Byron R. White:

— requires that recognition of the privilege supplement.

James L. Lekin:

Alright, to answer your question, I think that the Fifth Amendment — White and Wilson have absolutely nothing to do with the Fourth Amendment in this particular instance and I have explained this on page 18 of my brief as well as I can.

James L. Lekin:

The reason I don’t think it hasn’t anything to do with it is because the purposes of the amendments are different.

The Fourth is aimed at preventing a legal searches and seizures.

The Fifth is obviously aimed at preventing self-incrimination which goes back to the (Inaudible) proceedings and I —

William J. Brennan, Jr.:

But I gather you mean, aimed at illegal searches and seizures, you mean specifically in the context of the deterrence, the Mapp rule?

James L. Lekin:

Specifically, in the terms of police or federal authorities going into whatever it might be —

William J. Brennan, Jr.:

Yes, but deterrence?

James L. Lekin:

That’s right.

William J. Brennan, Jr.:

Deterrence against the — committing illegal searches and seizures.

James L. Lekin:

That’s right.

And I think to answer your question to pursue it even further, that’s why — in this instance, if the Court is going to determine standing for — prevails, if it’s going to require standing, I think the Court really has to take a look at what standing means and what the whole rationale of personal major means.

What does the victimization test of Jones require and what does directed at it — require.

Because it’s beyond me, how you can have an illegal search and seizure or have a search and seizure that is questioned.

And say, in Linkletter and infer it back in the Mapp and go beyond that with the idea of preventing authorities from going into homes or businesses or whatever it might be and saying, “We don’t want the police to doing this and we’re going to remove every incentive there is because we’re not going to allow the evidences if they violate this”.

And then at the same time, require, for instance someone to come in and say that they have to have a proprietary interest or they have to be on the premises.

For instance, when we’re talking about Jones which was decided in 1960 in the famous quote of, “Anyone legitimately on that premises may attack a search and seizure”.

Right there, I think it breaks down to some extent because you can have somebody that’s off the —

(Inaudible)

James L. Lekin:

I certainly would Your Honor, I —

(Inaudible)

James L. Lekin:

I’m not asking you to go that far Your Honor.

I — and I’m not asking you to go that far at all.

And I will be satisfied and I think that this Court under the authority of Jones versus United States hasn’t — has more than enough because the respondent meets both the test.

I think he was clearly the victim, and second of all, he was on the premises when the search and seizure occurred and he objected to the search and seizure.

And so I don’t ask that this Court completely rule out standing, if they don’t want to.But I simply say that there is merit in the argument.

Byron R. White:

Let’s say that the subpoena was served on this gentleman, he was in charge of the office and papers, and he refused to turn them over and they went to Court for a turnover order, or he persisted in it and they got — and they cited him for contempt.

And his basis for refusing to turnover the papers was the Fifth Amendment.

You would say that that objection is no good, I gather, and that he would — he should have turn them over?

James L. Lekin:

Well, I say that it’s no good in the light of United States versus White, it looks like in Wilson, because there —

Byron R. White:

Because why?

James L. Lekin:

Because — I’m not agreeing with this now.

James L. Lekin:

But I’m simply saying that the authority is —

Byron R. White:

But — well, I know you don’t agree but do you think that there’s something inconsistent between your position and White and Wilson?

James L. Lekin:

In — my position in — is inconsistent — no, I don’t.

Byron R. White:

So you tell me how — why he would have to turn the papers over his assertion of his Fifth Amendment rights.

James L. Lekin:

Well, because I assume that based upon these two cases, that he has no Fifth Amendment —

Byron R. White:

Well, yes I know but why not?

James L. Lekin:

Well, that’s a good question Your Honor, because the case —

Byron R. White:

Well, I know you must say —

James L. Lekin:

The case —

Byron R. White:

— because of the same reasoning, the same reason may very well destroy the Fourth Amendment right?

James L. Lekin:

Oh, I don’t think — no, no.

I don’t think it does.

Byron R. White:

But what reason is it then, that he doesn’t have a Fifth Amendment right?

James L. Lekin:

Well, because I think Wilson and White —

Byron R. White:

I know they said but what reason of it?

James L. Lekin:

What reason is there?

Byron R. White:

Yes, I mean what reason did the Courts give for saying that the — he doesn’t have the Fifth Amendment right?

James L. Lekin:

Well, because they’re saying that he’s required because — the — as an officer, if hides behind the façade of a corporation or a union and is required to keep books and records that the Fifth Amendment is a personal right and therefore he is not allowed to keep it.

And it goes back to the rationale of the Fifth Amendment being a personal right.

And I take it that the state has tried to incorporate this same argument by saying the Fourth Amendment is personal.

My point is that the two amendments are recognizing Boyd versus the United States in recognizing what was considered to be an interplay at the time that the case was decided.

And going back to Entick versus Carrington and all subsequent cases after Boyd, recognizing that the interplay existed, are they dependent upon each other?

And I don’t think they are dependent on each other.

I think Boyd or Mapp points it out, I think Schmerber makes that very obviously, Schmerber versus California.

And therefore, at the time Your Honor, because it’s my opinion that he doesn’t have a Fifth Amendment right, he does have the Fourth Amendment right because we’re talking about an illegal search and seizure.

We’re not talking about the serving of the subpoena and the refusal to do it.

Byron R. White:

So this is similar to the back — just like in the case of the corporation might have — not have a Fifth Amendment but would have a Fourth Amendment right?

James L. Lekin:

That’s right.

William J. Brennan, Jr.:

May I ask, you answer Mr. Justice Harlan earlier that you — contempt with an affirmance here on the premises of the Court of Appeals, am I right?

James L. Lekin:

Yes, Your Honor.

William J. Brennan, Jr.:

Could you tell me about those premises are, I’m — swear cannot understand.

James L. Lekin:

Well, the — I think that the Court of Appeals, what — I think we have to go back to Jones, what does Jones say?

Jones was of course predicated upon a possessorary crime of narcotics.

And the Courts said, twofold, that where there is possession in the charges basic in that, you need not — you’re not required to assert the Fourth Amendment in the sense of standing.

It also assess even were that — even whether or not this, a prosecution, predicated upon possession and that goes on and says, “Anyone legitimately on the premises, may assert the Fourth Amendment”.

And I think it was on this case that the Court of Appeals applied Jones.

Now, Jones at the very inception of the case, says, “That in order — that a person must be a victim.

That is the person must be against whom the search is directed –“

William J. Brennan, Jr.:

Well, let’s see are you saying that what they really said, this falls within the rationale of Jones because the search was directed really at him and not at the Union?

Are they —

James L. Lekin:

I don’t think —

— there’s no —

William J. Brennan, Jr.:

–And then invaded —

James L. Lekin:

— question about it.

William J. Brennan, Jr.:

— some personal right of privacy of his and that he was on the premises when the search and seizure occurred.

James L. Lekin:

Well, of course the question of personal privacy becomes the ultimate result but —

William J. Brennan, Jr.:

But what is that — is that what the Court of Appeals told us in this case?

James L. Lekin:

I think so Your Honor.

I think that the Court of Appeals is saying that DeForte is a respondent — was the victim of a search and seizure.

In other words, when the State of New York went in and seized these books and records, there were many factors that indicated that he — and not just the Union, was the victim.

Those factors were this.

Number one, monitors had been placed on the telephone.

Number two, there were wiretaps.

Number three, by extinguishing the respondent as well as the other two Union officers, the Union really ceases to exist because you incarcerate these people if you can convict them and the only way that you start up the illegal activities again is to either do one or two things.

You bring in new officers, or you get the same officers to comeback and start at the same operation again.

And I think in this light, the Court of Appeals applied the “directed at” test.

In other words, as I read Justice Frankfurter in his decision in Jones, he says that he must be the victim.

That is against whom the search and seizure is directed in order to qualify as a person aggrieved.

And as in — and is — in this sense and in this context that the Court of Appeals for the Second Circuit applied Jones to meet this requirement.

Potter Stewart:

So he can — it was a — the corporation, the Union — a corporation or an unincorporated association?

James L. Lekin:

An unincorporated association.

Potter Stewart:

Unincorporated association?

James L. Lekin:

Yes, Your Honor.

Potter Stewart:

And there is no question that the — what was seized here were — was the property of the Union.

James L. Lekin:

That’s right.

Potter Stewart:

There’s no question about that, is there?

James L. Lekin:

No, there isn’t.

Potter Stewart:

So, it was the effects of the Union.

Now, can a non — does the Fourth Amendment by its terms protect an unincorporated association from an unreasonable search and seizure?

James L. Lekin:

Alright.

Do you mean as far — well, are you talking about protecting the unincorporated association or its officers or both?

Potter Stewart:

The Fourth Amendment says the right of the people to be secured and that persons (Voice Overlap) —

James L. Lekin:

I think that obviously it does.

Potter Stewart:

— and effect shall —

James L. Lekin:

Yes they do.

Potter Stewart:

It’s included — it’s one of the people, is it under the Fourth Amendment —

James L. Lekin:

I would say so Your Honor.

Potter Stewart:

— in an unincorporated association.

James L. Lekin:

Silverthorne Lumber Company decided in 1920 —

Potter Stewart:

That was a corporation?

James L. Lekin:

— protects corporations, why wouldn’t it protect the Union.

There’s no reason in the world that it wouldn’t protect a union.

Potter Stewart:

You’re probably right, I just —

Abe Fortas:

Suppose your client had absolutely no connection with the Union, but there was something in the unlawfully seized union books that the state proposed to use against him in a criminal prosecution, by your analysis would that difference make any difference in result?

James L. Lekin:

If I understand your question, for instance if he were just a janitor of the Union or if he were an employee.

Abe Fortas:

But he wasn’t employed the by the Union at all but there’s a check, let’s say a book showing — show that a payment was made to Mr. DeForte or whatever his name is —

James L. Lekin:

DeForte, yes Your Honor.

Abe Fortas:

And that’s all.

He has no other connection with the Union.

He’s just — was a supplier of goods, let’s say.

Abe Fortas:

And the state wanted to use that evidence and the — would he be able to assert in defense that the books were illegally seized from the Union.

I’m trying to get the extent to which you would carry your theory.

James L. Lekin:

If I were arguing for that position, you would have to extend Jones quite a length.

You would have to — I think examine whether or not you’re going to have the standing requirement.

I think what you’re asking is can really anybody raise the Fourth Amendment if number one, you’re not the victim and possibly, number two, they’re not in the premises.

And in that example, I would think that —

Abe Fortas:

Well, they’re the victim, they get hurt.

Presumably, this evidence of the books are very harmful to them, that’s why the state wants to use it in a criminal prosecution.

So then you say that we were hurt that I — he could say he was hurt by the unlawful seizure of these books.

James L. Lekin:

Yes, but the problem with that is Your Honor, that — I think what you’re asking is this.

In order to qualify as person agreed by an unlawful search and seizure, one must have been the victim of a search and seizure.

One against whom the search was directed as distinguished from one who claims prejudice.

Now I suppose —

Abe Fortas:

That you rest on that proposition, that’s —

James L. Lekin:

Well, I’m —

Abe Fortas:

— I’m trying to find out.

James L. Lekin:

I’m afraid that that’s what Jones says and I interpret that to mean —

Byron R. White:

But that’s what’s said about Rule 41, not about the constitution.

James L. Lekin:

Yes, I realize that.

But of course Rule 41 incorporated many aspects of what they thought they were conforming the constitutional standards.

William J. Brennan, Jr.:

Tell me, do you think this case would be any — this chap was convicted for extortion, was he among other things?

James L. Lekin:

Extortion, and a number of other things, Your Honor.

William J. Brennan, Jr.:

Yes, suppose what had happened here had not happened in respect of the Union’s books, but of the books of one of the companies from whom — from which he was charged with having extorted moneys.

And they took the books in precisely the same way.

James L. Lekin:

You mean at the Union office?

William J. Brennan, Jr.:

No, no, no, at the office of the company from which was the victim of the extortion.

And in those books was the evidence that indeed he had extorted from that company.

James L. Lekin:

Yes.

William J. Brennan, Jr.:

But they were seized but — illegally just as found it here that they were.

Would you be taking any different position?

James L. Lekin:

No, of course I would be — I’d have to argue much strong because number one, he wouldn’t be on the premises.

And number two, I would have to meet Justice Fortas’ question as to whether or not he was a victim instead of whether it was prejudice?

William J. Brennan, Jr.:

Yes, but that’s where your deterrence — theory takes you though (Voice Overlap) —

James L. Lekin:

That’s right, it is Your Honor and that’s why I suggested at the very inception of this —

William J. Brennan, Jr.:

Well, I’m just wondering if the Court of Appeals, I suppose you must have urged this below.

James L. Lekin:

Yes, I did.

William J. Brennan, Jr.:

Well, didn’t they buy your deterrence argument really?

James L. Lekin:

We didn’t discuss it very much Your Honor because at that point, I was trying to —

William J. Brennan, Jr.:

Well, I must say, I can’t read that opinion of Judge Kaufman’s.

Stopping much, very sure of it.

James L. Lekin:

Your Honor, I’m here to of course affirm the decision —

William J. Brennan, Jr.:

Do you think there’s an affirmance in that they held?

James L. Lekin:

That’s right.

William J. Brennan, Jr.:

Yes.

James L. Lekin:

And I’m here for the Court to examine or ask the Court to examine the decision obviously.

But Judge Kaufman of course accepted my argument at the Court of Appeals and I filed a very detailed brief of 45 pages that really went into this quite thoroughly as to with Jones, because Jones at that time, in Silverthorne were like two main attacks.

I thought Jones apply because I thought obviously that DeForte was the victim.

I thought he was the person against whom the search was directed, and secondly, he clearly met the “on the premises” test which has been cited and cited again by this Court as being a relaxation of the standing requirement and it was on those two premises that — of course the Court made their determination.

Now, in their brief — in the written opinion, the Court did not deal with my Silverthorne argument because of course they didn’t have to.

They did — they reached it via Jones and they felt that it was unnecessary and they were correct in doing so.

But I’m urging this Court to affirm on three grounds, either on Jones, if we’re going to keep the standing requirement which I assume probably will be kept.

Secondly, Silverthorne Lumber Company which I’ve laid out in my brief, I think again is another ground.But third of all, if the Court is interested and I don’t — and I do not urge the Court to do this, and I say that it is not required to, but if the Court is interested in discussing standing, and I only say this in light of the reference that Mr. Justice Harlan made in the Simmons case, because in that Footnote, it says that it is suggested that perhaps we should do — we should reconsider the standing requirement, and that’s why I began my argument on those premises.

We didn’t say (Inaudible)

James L. Lekin:

No, he didn’t Your Honor.

And I think that this case presents grounds to examine it if the Court wants to.

(Inaudible)

James L. Lekin:

Silverthorne Lumber Company was decided in 1920.

It’s a very short opinion written by Justice Holmes.

And in Silverthorne, basically what happened was that there was an illegal search and seizure of corporate books and records.

The books and records were copied by the Federal Government.

James L. Lekin:

They were then returned to the company in its officers.

Thereafter the Government, through a subpoena sought to obtain the originals of the same records for indictment purposes I suppose.

They’ve refused.

I say they, I mean the officers and Mr. Justice Holmes back in 1920 without even mentioning the word standing, said that these books and records could not be used.

And in discussing the Fifth Amendment which was raised at that time, he stated that the Court — let’s see — the Court in Silverthorne rejected this contention on page 22 of my brief stating that the rights under the Fourth Amendment are to be protected even though the same rights and the same result might have been achieved in a lawful way.

I think what the Court was saying is that you preceded in a lawful way and therefore you cannot derive the reason — benefits of this unlawful search and seizure and that basically is the holding of Silverthorne.

While it gave corporations the protection of the Fourth Amendment, it also said that this evidence could not be used against the officers of the corporation.

This decision was filed up by the Second Circuit in the case of the In Re Dooley which I say in page 23 of my brief.

In In Re Dooley which is really the first case that considered the question of standing of officers, affirmed Silverthorne in its interpretation on the particular facts and implied it.

And they said that the illegal search and seizure of corporate books and records of a corporation could not be used against the officers of the same corporation.

Potter Stewart:

Silverthorne arose in a different way.

It was as contempt proceeding when the corporation and its officers refused to turnover to — in obedience to a subpoena, the corporate books and records.

And as Justice Holmes’ opinion indicates the — that subpoena was in turn grounded upon a secret unlawful search of the corporation’s premises.

Therefore, it was an unlawful subpoena and it didn’t have anything to do with the admission of evidence either against the corporation or against the corporate officers.

It simply was the reversal of their contempt convictions because they said that they were entitled to resist an unlawful search.

James L. Lekin:

Well, the point is though Your Honor, in substance, there was an unlawful search really and the Courts said that the essence of the provision for getting the acquisition of evidence in a certain way is that not merely evidence so acquired shall be not used before the Court but that it shall not be used at all.

And in substance, this is what the Court was saying, no matter how it arose, the point was that there was an illegal search and while it was in response to subpoena, the Court said that you can’t use this evidence and therefore we’re not going to hold a party in contempt.

Potter Stewart:

But there was a corporation here and the corporation’s officers, they were making the objection with respect to the seizure of corporate records to be used against the corporation.

James L. Lekin:

That’s right Your Honor.

In this particular case, I say that really there is no remedy for the officer of the Union because when the books and records were seized, the authorities have got to use of the books and records.

There is no way that they could object through the Union at the time because the books and records have been seized.

Assuming that the — assuming whether or not the union had or the officers have or they do not have a Fifth Amendment right, they have — the officer has a Fourth Amendment right to be protected that in this particular case, he was the victim if the Court is going to still ascribe to the Jones ruling and that as a result — whether we’re talking about the Jones case, whether we’re talking about the Silverthorne case, beyond the premises test of Jones, the victimization test of Jones, the respondent is entitled to suppression of these books and records.

The illegality is admitted and the only question is standing and I urge the Court to affirm the decision of the United States Court of Appeals.

Thank you Your Honor.

Earl Warren:

Mr. Rauch.

Michael H. Rauch:

All I would say in rebuttal Your Honors is that the issue which the respondent has attempted to inject indirectly into this case, namely the whole question of standing itself is one that was not briefed below and I can’t say whether it was argued below because I didn’t argue in the case below myself, but it was not — neither has it been briefed here.

I would not consider it to be a proper subject for this Court’s decision but in any event I would repeat what I began by saying in answer to a question of Mr. Justice Fortas, namely that standing is an often misused word which I take to be a shorthand description of whether or not the objecting individual’s Fourth Amendment rights were violated.

So, it seems to me they talk in terms of eliminating any standing requirement would be to rewrite the Fourth Amendment and I would consider that that’s not something were interested in doing.

Thank you very much Your Honors.