Maryland v. Garrison – Oral Argument – November 05, 1986

Media for Maryland v. Garrison

Audio Transcription for Opinion Announcement – February 24, 1987 in Maryland v. Garrison

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William H. Rehnquist:

We will hear argument next in Maryland versus Garrison.

General Sachs, you may proceed whenever you are ready.

Stephen H. Sachs:

Thank you very much Mr. Chief Justice, and may it please the Court, we are here on a writ of certiorari to the Court of Appeals of Maryland which reversed the conviction of respondent Garrison because in the judgment of the Maryland Court of Appeals the evidence necessary to sustain that conviction was the product of an unconstitutional search of respondent Garrison’s apartment.

The search and seizure warrant in question issued by a District Court judge, state judge in Baltimore issued for the person of one Lawrence McWebb, a suspected marijuana dealer, and his premises, 2036 Park Avenue, third floor apartment.

It was issued, we believe respondent concedes, with ample probable cause for McWebb and for that search.

It was issued, however, on the assumption and executed on the assumption that only one apartment existed on the third floor at 2036 Park Avenue and it was the apartment of McWebb.

It turned out that that assumption was, in the words of Hill v. California, quite wrong.

There were two apartments, one McWebb’s, the other Garrison’s, and the question before the Court is whether the police behavior here in this case falls within the margin for reasonable error allowable by the Fourth Amendment as recognized in the opinions of this Court like Hill against California, in Brineger, and in others.

We submit that the conduct of the police here clearly does fall within that reasonableness standard.

It is helpful, we think, Your Honors, to analyze what the police did here in three separate stages, the investigation stage which led to the obtaining and issuance of the warrant, the arrival at 2036 Park Avenue, arrival at the premises, and finally the entry into the third floor premises themselves.

Each of these stages reinforced, we submit, the assumption at the beginning that there was one apartment on the third floor and it was McWebb’s, and each of these stages, we also submit, Your Honors, was dominated by a crucial fact, an overwhelming fact, a central fact that categorized, characterized each stage.

In the first stage the verification from the public utility, the Baltimore Gas and Electric Company, that there was only one apartment on the third floor, that was McWebb’s.

At the second stage it was the arrival of McWebb himself, the very subject of the… intended subject of the search, who arrived on the scene fortuitously.

He had been out of his apartment, came to the scene, and in effect led the officers up the stairs.

And finally, in the third stage, it was the appearance of the premises once the police went through the door, which we suggest gave the appearance for all the world that this is one apartment and only one apartment.

Now, the facts begin with a tip from an informant of Officer Marcus that the informant had been buying marijuana for a long time, I believe, six months from someone he knew as Red Cross, street name Red Cross, from his apartment on the third floor of 2036 Park Avenue.

The informant said nothing about the existence on that floor of two separate apartments.

The informant, had bought marijuana as recently as the day before Officer Marcus proceeds to get his affidavit.

Officer Marcus then does an eminently reasonable thing.

He checks with… first, he looks at the premises, sees that it is a three-story brick building with 2036 on the outside, which the informant had said, and then he checks with the public utility.

He calls up the Baltimore Gas and Electric Company to find out who lived on the third floor.

All he had was the street name, Red Cross.

And he recites in his affidavit for the warrant that he called and he discovered, he says the word 2036, third floor, was in the name of Lawrence McWebb.

He on examination at the motion to suppress… Officer Marcus says he expressly asked Baltimore Gas and Electric Company, was there a front and a middle and a back, or words very much to that effect, and “They told me”, and this is a quote from Marcus in the suppression hearing, “They told me”, he says,

“one third floor was only listed to Lawrence McWebb. “

not perhaps the most grammatical or artful expression of what we think the evidence is clear it meant.

What he was saying was, there is only one guy who lives there, there is only one apartment, it is McWebb–

McWebb to the informant.

He says that is Red Cross.

And Marcus gets his warrant.

Stephen H. Sachs:

It is difficult, may I suggest at this stage, Your Honor, to imagine a police officer acting more reasonably under the precedents of this court and the preference for the warrant requirement and the reasons for it in the first place.

Of course, he could have done more.

He could have checked with the phone company, I suppose.

He could have made supplementary checks.

But the mistake here was the mistake, we suggest, of BG&E.

It was not the mistake of the police.

His reliance on that mistake was appropriate and was consistent with the informant.

There was no reason to question, and the BG&E was indeed the verification, as the Court of Special Appeals in this case held, the verification of the information that he needed.

Stage Two is the arrival at the premises, 2036, of the police raiding party.

While Officer Shea, one of the first officer on the scene, was examining the outside door to the premises, the exterior door that led to the street, and was trying to gain entry into that door without breaking it down… at one point he said he punched all seven bells to try to get somebody to press the release buzzer… so he could get in without breaking down the door.

While that is going on… and incidentally he testified and the Court found as a fact that McWebb’s name was at none of those bells… while that is going on, who should arrive but McWebb himself, by vehicle.

He is detained, of course.

He is informed of the search warrant, of course, and what then happens is, he leads the raiding party… his key is used to open the exterior door.

He leads the raiding party up the… into the first floor, onto the second floor landing, onto the third floor, and it is his key that opens the door to the third floor apartment as it appeared to the police at that time.

Significantly, on the way up and throughout this entire episode McWebb never says, my apartment is third floor rear.

Never does he indicate that there are two apartments.

Never, as we will see in a moment, does Garrison so indicate.

But as they are going up these stairs the police are also seeing on the first and the second floor, the evidence shows, doors leading from the landings to what must have appeared to them to be apartments, but when they get to the third floor, this is not the lady and the tiger.

We are not here talking about options that the police have.

There is one door and one door only on the third floor appearing for all the world to them to be the door of the apartment of the man McWebb who is the subject of the search who is now leading them into the premises itself.

There is an interesting–

William H. Rehnquist:

Unlike the appearances on the first and second floors.

Stephen H. Sachs:

–Absolutely.

Absolutely.

Officer Marcus… Shea does not recall in his testimony, Your Honor, whether there were or were not doors on the other floors, but Officer Marcus expressly, and we cite the references at Page 10 of our reply brief, expressly talks about there being “other doors”, “a lot of doors”.

I think he is talking about the second floor in particular, perhaps the first, but certainly the third.

I think he is talking mostly the second floor, options, but on the third one door and one door only.

In an exchange between counsel for Garrison, the respondent, and Officer Shea at the motion to suppress counsel says, well, didn’t it occur to you, officer, that as you got to the third floor there might be more than one apartment?

Shea replies, not when I saw that one door, no.

It is also important, we suggest, Your Honors, to remember this in analyzing this case.

Stephen H. Sachs:

This is not a situation in which the police should have been expected to ask as they were proceeding, should we, shouldn’t we.

This was not analysis of where are we each stage of the way.

They had a valid warrant as far as they knew.

They were proceeding up the stairs with the very subject of that warrant.

There was not a reason for them to be self-examining their conduct because nothing had gone off to alert them of the need to do so.

And so here we have at Stage Two the arrival at the moment of truth with… led by the very subject of the search itself, and now we come through the door.

It is the key of McWebb that allows them to come in, although Officer Marcus recalled that he thought Garrison himself might have opened the door, but what they see when they come in further ratifies and reinforces the assumption that they had been making from the beginning, the validity of this warrant for the one apartment on the third floor.

On the right… they enter a tiny foyer, four by five feet, as I think the description… at the appendix in our petition for certiorari is a diagram, Appendix Page 44 in the petition for certiorari, but what they see… they are in this small, tiny foyer, and to their right they see an open doorway with a bedroom.

To their left they see an open doorway with a livingroom, and no doors were visible.

That is a finding of fact of the trial court in this case.

No doors were visible.

In fact, as it turns out there were doors to those two, doorways, the bedroom and the livingroom, but they were wide open, and they opened inward, and the evidence is, as I say, the court found as a fact that no doors were visible.

May I also add at this point, Your Honors, that it is not unreasonable that it should have seemed to them to be one premises occupied by a common… one apartment.

It is, after all, and as a matter of record in this case, that this had been a building, as many buildings on that block are, this had been 3 building that had been a one-family building.

This building was built for one family and had been broken down into apartments, but I suggest to you that you should not have in your mind the notion of some corridor with doors going off to various apartments.

So you have only the two doors, and the two doors are wide open, with no doors visible at all.

The doorways are wide open.

And to and behold, directly in front of them, not in what turned out to be his apartment, not even in the bedroom that they saw on their right, but directly in front of them is the respondent Garrison.

He is in pajamas, and he is in a body cast because he had had recent spinal surgery.

He is asked to identify himself, and he does.

He is silent with respect to, wait a minute, now, I am a neighbor here, this is not… what are you doing here in my place.

He is absolutely silent on that question.

He is detained, and taken off to the livingroom thing that I described on the left, and the police at this moment see, as they are into this tiny car, they see marijuana on the bureau in the bedroom, what they think is marijuana on the bureau in the bedroom of Garrison.

The very thing they had the probable cause to believe was being sold by McWebb from his apartment they now see in a bedroom on a bureau five, six feet away from where they were.

It is reasonable, it is reasonable, we suggest, and that is the standard and, we suggest, the only standard that needs apply here, for the police to have assumed that Garrison was a housemate, Garrison was a roommate, Garrison was a convalescing cousin come to call.

He was not a neighbor who had some independent living arrangement over there.

Now, there were other indicia that developed in the course of this episode that are more ambiguous in terms of the timing, but they cut very much in favor of the state.

The phone in Garrison’s bedroom on the right rings.

It is a phone call for Red Cross, McWebb.

Clothes are found hanging on what was the exterior door to Garrison’s apartment, the one on the right.

William J. Brennan, Jr.:

Mr. Attorney General, looking at this diagrams you have Garrison’s name here at the right, a bedroom.

Is that the entire apartment?

Stephen H. Sachs:

No, Your Honor, the entire apartment, as it turns out, and as the police, as they did their securing tour of the premises later discovered, but only after the heroin was discovered in the bedroom, the entire apartment, Your Honor, would be… the bedroom of Garrison would be what is marked “bedroom”.

The living room immediately behind it is Garrison’s… is the living room of that apartment.

You see a kitchen down on the left and a bathroom.

Indeed, it was when the sergeant saw two kitchens as he went through this entire operation and noticed that there was the opportunity… the two bathrooms with an opportunity to lock a bolt that was open but nonetheless he saw that, and–

William J. Brennan, Jr.:

But did you have to get into Garrison’s apartment by that common stairway?

Stephen H. Sachs:

–Oh, absolutely, Your Honor.

William J. Brennan, Jr.:

You did?

Stephen H. Sachs:

Oh, absolutely.

The only way to get into Garrison’s apartment was through the doorway, wide open, as I described, that shows immediately to the right of the stairs.

William J. Brennan, Jr.:

Did you have to pass through the other apartment to get into Garrison’s?

Stephen H. Sachs:

No, Your Honor, absolutely not.

The two apartments turn out to be an apartment on the right, Garrison’s, and an apartment on the left, McWebb’s.

The point is that we didn’t realize that–

William H. Rehnquist:

General Sachs, we will resume there at 1:00 o’clock.

We will resume argument where we left off, General Sachs.

Stephen H. Sachs:

Thank you, Mr. Chief Justice.

May it please the Court, until the discovery that I was attempting to explain to Mr. Justice Brennan before the break, until the discovery by the police of the two kitchens and the two bathrooms, until it became apparent to the searching party that this may well be two apartments, at which point the search ceased, an assistant state’s attorney was called, and the search was terminated, until that point it is our position that nothing about the scene contradicted the assumption of the warrant.

Everything about the scene reasonably observable that came to the senses of the police officers confirmed the assumption of the warrant, the central assumption of this case, which is that there was one third floor apartment and it was McWebb’s.

William J. Brennan, Jr.:

If I may, I thought there was only one door on the third floor–

Stephen H. Sachs:

There was–

William J. Brennan, Jr.:

–into the apartment.

Stephen H. Sachs:

–There was one door, Mr. Justice, that led, only one door on the third floor that entered into what we now know to be the two apartments of McWebb and Garrison.

It was a locked door, and it was through that door that McWebb’s key and McWebb led the officers.

That enters, that one door, as opposed to the second and first floors, where there are many doors, that one door, and I am referring here to the petition for certiorari, Appendix Page 44, that one door leads to a very small foyer.

It is marked hallway.

William J. Brennan, Jr.:

Off which there are doors?

Stephen H. Sachs:

Off which there are doors, but at the moment they entered all the police saw, so the Court found, was two doorways, not even doors, two doorways, the one on the right into Garrison’s bedroom, and what we know to be his apartment, and on the left into McWebb’s.

In fact, Mr. Justice Brennan, we now know that the door on the right, once we are into the third floor, now, the door on the right was in fact the door to a Garrison apartment.

Stephen H. Sachs:

The door on the left was a door into a McWebb apartment.

William J. Brennan, Jr.:

0 xxx.

Stephen H. Sachs:

Well, there were doorways, and all that was visible to the police were doorways.

In fact, there were doors but they were fully opened and they opened inward so that they were not visible to the searching officers.

Indeed, Mr. Justice Scalia, the evidence is that at some point during the presence of the police officers in the Garrison bedroom they noticed clothes, they noticed the door finally, and there were clothes hanging on its exterior, so that… and the police… it was a further indicia, we suggest, that this was not a separate apartment.

Who hangs clothes over the outside door to one’s own apartment?

We don’t press it too hard, frankly, sir, because it is a little ambiguous as to the precise point at which they noticed that particular feature.

We ask this, Mr. Chief Justice and members of the Court.

It is customary for counsel such as myself in defense of searches by police in the argument of reasonableness to invoke, to really plea for understanding from courts because of the obvious tenseness of the situations, because of the danger of the situations, because of the kind of considerations this Court recognized in Michigan against Summers and others, the split second… the need for split second decisionmaking.

All of that is true here, and of course we urge that those considerations be part of the analysis of the Court, but we have so much more here.

We are not left with only those indulgences that we ask of courts for police conduct.

We had a warrant.

These police had a warrant that they believed to be valid, and they reasonably believed it to be valid, and they reasonably believed that they were executing it valid.

Byron R. White:

Well, what do you do with the judicial finding that the warrant covered only McWebb’s apartment?

Stephen H. Sachs:

The Court of Appeals–

Byron R. White:

How did the Court of Appeals know it covered only McWebb’s apartment?

Stephen H. Sachs:

–The Court of Appeals, with all respect to it, from hindsight.

That is how, Mr. Justice White.

The Court of Appeals… nobody can change what–

Byron R. White:

Maybe they thought if they could tell, maybe the officer should have told.

Stephen H. Sachs:

–What is striking about the Court of Appeals opinion, Mr. Justice White, is that it absolutely eschews any analysis of reasonableness whatsoever.

It is precisely the vice of the Court of Appeals opinion that it encants a conclusion.

You did not have a warrant for the premises.

There was no warrant for the search in Hill.

It is always after the fact.

One can always say, if one finds fault one can say with respect to any such analysis there was no warrant.

The point here is, did they reasonably believe they had a valid warrant?

The issue in this case, sir, is whether or not the mistake made by the police was reasonable.

That is an analysis the Court of Appeals never made.

Byron R. White:

Well, suppose that it would have been perfectly clear to anybody that there were two apartments on the third floor.

Stephen H. Sachs:

Then we should have lost this case and we would not be arguing what we are here arguing.

The Court of Appeals did not conclude that it would have been or should have been reasonable to anyone.

The Court of Special… the trial court found reasonableness.

The Court of Special Appeals affirmed that finding.

The Court of Appeals never asked the question, and that’s the–

Byron R. White:

The warrant actually authorized a search of the premises of McWebb, didn’t it, at 2036 Park Avenue, third floor apartment?

Stephen H. Sachs:

–That was its intention clearly.

Byron R. White:

Is that what it said?

Stephen H. Sachs:

What it said literally, Mr. Justice White, is this, “For the person of”.

There is a printed warrant that is at the beginning… you will find it in the Joint Appendix at Page 4.

Byron R. White:

All right.

Stephen H. Sachs:

It reads, “For the person of”, and then the name McWebb is there.

Byron R. White:

Yes.

Stephen H. Sachs:

And then it says “for the premises known as”.

It doesn’t say his, it simply says

“for the premises known as 2036 Park Avenue, third floor apartment. “

There is no question that the assumption of the warrant and of the officers was that the intention was only to search McWebb’s apartment.

There is no question about that.

If they had known of a Garrison apartment, 2A—-

Byron R. White:

Does the warrant tell you that you are entitled to search… that the assumption is that McWebb lives on the whole third floor?

Stephen H. Sachs:

–The warrant doesn’t address literally that, sir, but the warrant assumption is, the affidavit recites the information received from the gas and electric company.

The warrant assumes without stating, but it was the clear assumption of the warrant that the entire… that the McWebb apartment in question was the third floor.

Byron R. White:

And obviously if they had arrived at the third floor and there actually was only one apartment, you could have searched the whole apartment.

Stephen H. Sachs:

Exactly so, and had they arrived at the third floor and suddenly found two closed doors, one of which said McWebb and the other Garrison, they should not have–

Byron R. White:

They should have found out which one to search.

Stephen H. Sachs:

–Absolutely.

Byron R. White:

But they arrived and you think it is just like there was only one apartment because it was reasonable to think so.

Stephen H. Sachs:

Yes, sir.

It was reasonable to get the warrant on that assumption, it was reasonable to assume it going up those stairs.

Byron R. White:

So this is just no violation of the Fourth Amendment.

Stephen H. Sachs:

Precisely so.

Byron R. White:

You don’t have to get any farther.

Stephen H. Sachs:

Precisely, Your Honor.

Byron R. White:

Like Hill.

Stephen H. Sachs:

Precisely like Hill, and exactly as in Hill, officers’… the recognition that Officers’ mistakes can be understandable.

Sufficient probability, not certainty, is the touchstone of reasonableness, as this Court said, and that is precisely the doctrine that we think needs to be applied here.

This is not a case for new doctrine.

This is not a case for extension of any present doctrine.

This is not a case for newfangled… some would call it newfangled notions.

This is an old-fashioned traditional–

John Paul Stevens:

General Sachs, you argue in the alternative, as I read your brief, that this is a reasonable search and therefore not a violation of the Fourth Amendment, and B, this is a reasonable search and therefore… and you are entitled to the good faith exception.

In your view is there a difference in the test of reasonableness under the two different arguments?

Stephen H. Sachs:

–In this… certainly not in a case that involves an alleged mistake of fact.

It is the heart of our position that when you are addressing the issue of reasonableness or not of a factual mistake there is no difference whatsoever between the merits test and the good faith test.

If the police reasonably, with objective reasonableness, the language of Leon, believed here that there was one apartment and only one and it was McWebb’s, then there was no Fourth Amendment violation.

We don’t have to get into the problem of the different voices that have been discussed in some other sense in Leon, in a dissent in Leon, with respect to this issue, this case.

Other cases may present the question of how and under what circumstances the police can be said to be objectively reasonable, notwithstanding the fact of a Fourth Amendment violation, Leon and Shepherd do that very thing.

That, we urge Your Honors–

Byron R. White:

xxx making a mistake that these facts add up to probable cause.

Stephen H. Sachs:

–The legal judgment is a much tougher situation.

Where Leon goes from here with respect to analyzing the police’s good faith objective reasonableness in making legal conclusions is a problem but not a problem for us, we respectfully suggest, in this case.

This is a mistake of fact case.

It is Hill.

It is heavily influenced by if not controlled by the decision in Hill.

Room, this Court said in Brinegar, must be allowed for reasonable mistakes on the part of police officers.

Such reasonable mistake was made here, and we think that the judgment of the Maryland Court of Appeals, which never even asked the question of reasonableness, should be reversed.

I would like to reserve unless–

Thurgood Marshall:

Mr. Attorney General, not that it matters to this case, do you remember what block of Park Avenue this was?

Stephen H. Sachs:

–Twenty-six thirty.

Thurgood Marshall:

Twenty-sixth?

Stephen H. Sachs:

I am sorry, 2036 Park Avenue.

It is just below the reservoir, Mr. Justice Marshall.

It is now known, I think, as Reservoir Hill.

William H. Rehnquist:

Thank you, General Sachs.

We will hear next from you, Mr. Kroop.

Gerald A. Kroop:

Mr. Chief Justice, and Honorable Justices of the Court, good afternoon.

This case, and this Court has struggled for over 70 years in a very deep, dramatic, and using legal minds throughout these years to try and balance what we are trying to do today.

On the one side we want that Fourth Amendment where it says the right of the people to be secure in their persons, houses, and effects against unreasonable searches and seizures to still be viable, but on the other hand we do not want to handcuff the police to such an extent that it is going to frustrate them and deter them the opposite way from going ahead and trying to ferret out criminals and be brought to justice by using evidence that is recovered against them.

Now, in this great back and forth stress ever since Weeks to the present time, many positions have been taken.

As a defense lawyer my heyday was back in the Warren Court.

Today I find it a much more difficult uphill battle the way the Court is leaning, but that is fine.

We have to adjust.

But the Court is still desperately trying to strike this balance, and I think if you step back from what the Court has done, I think the Court very clearly during its period of time over this 70 some years has said that warrantless searches, and you still say warrantless searches are per se unreasonable.

The touchstone of the Fourth Amendment indeed is reasonable because the Fourth Amendment says the right of the people to be secure against unreasonable searches and seizures.

So the question is, is this an unreasonable search, and we submit without any equivocation it is, because it was indeed a warrantless search.

To say that they had a warrant for Garrison’s apartment would be just picking themselves up by its own bootstraps.

If, for instance, the police would have gone with a warrant into the wrong place first and then they discovered it, went into the right place, nobody would have a problem with that because the warrant indeed was for McWebb.

If the police didn’t really know where to go, and there was, say, only one apartment, and nothing was seized from Garrison because it said McWebb, and as Justice White pointed out, the affidavit clearly says McWebb and third floor.

An inference is there, What is the inference?

The person to be seized is that person who lives at that apartment on the third floor.

So this indeed was a warrantless search.

Sure, they had a warrant.

John Paul Stevens:

May I just interrupt for a second, Mr. Kroop?

Gerald A. Kroop:

Certainly.

John Paul Stevens:

As I read the warrant, which I think, incidentally, is on Page 9, not Page 4 of the Joint Appendix, the premises, a description of the premises, the premises known as 2036 Park Avenue, third floor apartment, described as a three-story building with the numerals 2036.

Gerald A. Kroop:

That’s correct.

John Paul Stevens:

And so they did search within the area described in the warrant.

Gerald A. Kroop:

They searched within the area described in the warrant, but they also, as General Sachs pointed out, there is a place on the warrant.

Indeed, the affidavit, which we can incorporate by reference, mentions McWebb, McWebb, McWebb.

John Paul Stevens:

Yes, but it doesn’t say the premises–

Gerald A. Kroop:

No, it does not.

If it said that–

John Paul Stevens:

–It doesn’t identify, associate the premises with him.

Gerald A. Kroop:

–That’s correct.

John Paul Stevens:

Okay.

Gerald A. Kroop:

What they were looking for truly, we know for a fact, was McWebb’s premises, not Garrison’s or not anybody else’s.

Byron R. White:

Didn’t the Maryland courts read the warrant as authorizing only the search of McWebb’s apartment?

Gerald A. Kroop:

Do you know what the Maryland courts, Justice White–

Byron R. White:

What about my question?

Gerald A. Kroop:

–I don’t think so.

Byron R. White:

All right.

Gerald A. Kroop:

Yes.

Yes, they did.

The answer is yes, and what they did, that’s correct, what they did, without any equivocation stated is what I just started with.

Warrantless searches are per se unreasonable.

There was no warrant.

Byron R. White:

Because the warrant authorized only the search of McWebb’s apartment.

Gerald A. Kroop:

That’s correct.

They felt–

Byron R. White:

Is that what they held?

Gerald A. Kroop:

–very similarly to what I am arguing to the Court today, that because McWebb is mentioned, and the affidavit, we can’t forget that.

That is the guts of why you get the warrant.

It talks about McWebb.

It describes him.

The police knew who he was to such an extent when he walked up, they knew right away who he was.

John Paul Stevens:

Yes, but it also describes the premises the same way the warrant does.

Gerald A. Kroop:

It says… the facts presented by General Sachs to you are absolutely correct.

That is the finding.

It describes a third floor apartment.

That’s correct.

Gerald A. Kroop:

What was wrong when Judge Landon signed the warrant and what was wrong when they finally got to the third floor, there turned out to be two separate, distinct apartments, one belonging to Harold Garrison, which he has an absolute unequivocal right against trespassing by police officers who are walking into his premises without a warrant.

That was not the intention or the contemplation of the judge nor was it the contemplation or the intention of the police officers when they entered the premises.

They didn’t go in looking for Garrison.

They were looking for Mr. McWebb, and they had him, he led them upstairs, and lo and behold, there they are.

I am not going to argue to this Court certainly as if it were a jury, but our Court of Appeals when I argued the case couldn’t understand why the police, who can see around corners and see into bags that are opaque, couldn’t see the numbers on the doors.

They found trouble with that.

They looked at this case as a self-serving, as a bootstrap case for the police to get themselves into a premises and to make a warrant sustain itself where it didn’t belong.

We are not deterring the police in this case.

William J. Brennan, Jr.:

Was McWebb ever arrested?

Gerald A. Kroop:

That is just what I was getting to, Justice Brennan.

Yes, he was.

He was convicted.

Why?

Because our officer who represented him pled him guilty.

The warrant was good.

The search was good.

But of his apartment.

And he… that is exactly my point.

We are not deterring the police from frustration.

We are not having them being frustrated, because McWebb, the target was brought to justice, pled guilty, was convicted, and met the full justice of the court below.

Sandra Day O’Connor:

Mr. Kroop, what if an arrest warrant were put out for a specific individual and the police in fact arrested someone who matched the description but didn’t turn out to be in fact the one arrested, and they search, and in the process discover drugs.

Gerald A. Kroop:

The simple answer, I think–

Sandra Day O’Connor:

Mistake of fact.

Reasonable.

Gerald A. Kroop:

–Yes.

Sandra Day O’Connor:

Why don’t we apply exactly the same sort of thing with the search of the premises, a reasonable mistake?

Gerald A. Kroop:

Because the Court never has.

The Court has never elevated the citizen on the street–

Sandra Day O’Connor:

But shouldn’t we?

Is there any reason not to?

Gerald A. Kroop:

–Well, yes, because if you elevate the citizen on the street being arrested to the premises, which you never have, nor have you done it with a vehicle or a motor home, which Chief Justice Burger struggled to make a distinction between that mobile home and a vehicle, why struggle?

The distinction is this, to answer you directly.

Where will it lead?

The police officer stops the policeman, the suspect on the street.

He makes a mistake.

Pursuant to that, under the common law and Chimel versus California, he searches.

We say you cannot stop and frisk a house.

Is that where it is going to lead, in other words?

We talk about probable cause and the Fourth Amendment, and now we are diminished down to articulable, reasonable suspicion, which–

Sandra Day O’Connor:

Well, we are talking about a warrant and whether there is room for making a reasonable mistake when all the outward circumstances would indicate there is one apartment on the third floor.

Gerald A. Kroop:

–I think with the individual, without question, to answer you, yes, because this Court has seen fit that the individual does not have that same degree of protection under the Fourth Amendment nor does a car, nor does anything traveling out on the street, including that mobile home again.

So, without any question if you elevate it to the premises you are taking away the very place where the human being… everybody can find sanctity.

Antonin Scalia:

We are protecting the premises more than the Individual?

Gerald A. Kroop:

This Court has.

Antonin Scalia:

You are saying–

Gerald A. Kroop:

Why?

Antonin Scalia:

–it is a good thing.

You are not saying it is funny we have done it.

Gerald A. Kroop:

I happen to disagree with the Hill decision.

Antonin Scalia:

You are saying we should do it.

Gerald A. Kroop:

I think you should not.

I think the individual on the street should be secure from unreasonable searches and seizures the same as my premise.

Antonin Scalia:

You think Hill was wrong, basically.

Gerald A. Kroop:

Was it wrong?

In my opinion, yes.

But the difference in Hill, let–

Byron R. White:

That is the second time you have said it.

Gerald A. Kroop:

–Let me go back to Hill for a minute to show you why.

What happened in Hill, if you recall, is that when they arrested Hill and made the subsequent search it wasn’t of his person, it was way beyond his reach, lunge, or grasp, which would now violate Chimel versus California, so the whole crux of Hill would not even be viable today because Hill really didn’t care about being arrested.

He cared about the evidence that was used against him, and that evidence was out of his reach, lunge, or grasp, and under Chimel versus California this Court would say nice try but you went too far.

Antonin Scalia:

That is the only reason you think it is wrong?

Gerald A. Kroop:

No.

Antonin Scalia:

That isn’t what I meant.

Gerald A. Kroop:

No, I don’t.

I think the Fourth Amendment–

Antonin Scalia:

You think the arrest shouldn’t have been allowed, too?

Gerald A. Kroop:

–I think the Fourth Amendment says what it says.

The right of the people to be secure in their persons, in their houses, in their papers, and their effects.

The Court has made the distinction.

I live by it.

Antonin Scalia:

From unreasonable searches and seizures.

Gerald A. Kroop:

That’s correct.

Antonin Scalia:

You acknowledge that you can wrongfully issue a warrant because you think that the warrant is proper and in fact it is not proper.

Nonetheless–

Gerald A. Kroop:

There is a big distinction–

Antonin Scalia:

–What is a difference?

Gerald A. Kroop:

–in that, too, Justice Scalia.

Let me say why.

When you go to get a warrant from a detached, neutral magistrate, a policeman is doing precisely what this Court for 70 some years has begged him to do and urged him to do.

He went to that neutral and detached magistrate, and when he went there he gave the magistrate with his knowledge the opportunity to act as a buffer between the overzealous police that defense would always argue and the citizen’s rights.

So we have that protection.

Justice O’Connor touched on that very thing in the first case today of Krull.

In a statute, for instance, in Krull we have at least, at least the legislature intervening, using their knowledge and wisdom to give guidance to a policeman.

At least we have that, but in this case we have the unbridled, sole judgment of a police officer trying to do his job in good faith.

Thurgood Marshall:

Mr. Kroop, let’s take this step by step, and you tell me when the police went wrong.

When they went up to the house, at the front door.

Gerald A. Kroop:

So far, so good.

Thurgood Marshall:

And when the man gave them the key.

So good?

Gerald A. Kroop:

McWebb, incidentally, was named in the warrant.

Thurgood Marshall:

Is that your case?

Gerald A. Kroop:

Yes.

Absolutely, yes.

Thurgood Marshall:

We go up to the third floor, he is still okay?

Gerald A. Kroop:

Yes.

Thurgood Marshall:

And he opens the one door with the key.

Gerald A. Kroop:

Yes.

Thurgood Marshall:

He is okay.

Now, where did he go wrong?

Gerald A. Kroop:

Went wrong the moment he walked in through that threshold of that house that this Court has always held above everything else.

The moment he walked through the threshold.

Thurgood Marshall:

How would he know that was wrong?

Gerald A. Kroop:

Didn’t know.

Were we to reward him for his mistake?

He didn’t even have probable cause, and that is… the Constitution says probable cause.

Now when he walks in with a blunder we are saying we are going to reward a blunder?

If the surgeon cuts off the wrong arm we don’t reward him.

Thurgood Marshall:

This Court has said the blunder is not enough.

Gerald A. Kroop:

The blunder of the magistrate.

Thurgood Marshall:

That’s right.

Gerald A. Kroop:

There’s a difference, because you have that neutral–

Thurgood Marshall:

Oh, you say the error now is the magistrate?

Gerald A. Kroop:

–I am sorry, sir?

Thurgood Marshall:

The error was of the magistrate?

Gerald A. Kroop:

No, not in this case.

No.

Thurgood Marshall:

Well, I am talking about this case.

Gerald A. Kroop:

In this case, the error–

Thurgood Marshall:

Once they went in–

Gerald A. Kroop:

–even though in good faith, was the police.

Thurgood Marshall:

–If they had gone in the other door it would have bene okay?

Gerald A. Kroop:

Absolutely, because McWebb by inference, by the affidavit, we can’t disregard the affidavit or the fact that it mentioned McWebb.

We are talking about a man’s house.

We are not talking about his car, which is subject to license and regulation.

We are not talking about walking on the street.

Thurgood Marshall:

xxx man is given his key.

Gerald A. Kroop:

No, that’s McWebb.

McWebb did not give the key to Garrison’s apartment.

Garrison’s apartment was open to the police because his door was open.

Thurgood Marshall:

Did Garrison’s apartment have a separate key?

Gerald A. Kroop:

Did Garrison ever accept the key?

Thurgood Marshall:

Did Garrison’s apartment have a separate key?

Gerald A. Kroop:

I believe it was clear that… not on the record, but I think it is very clear without any equivocation that they were two separate, absolutely distinct apartments.

Thurgood Marshall:

With the same door.

Gerald A. Kroop:

With the same common door.

Thurgood Marshall:

The same lock.

Gerald A. Kroop:

Most respectfully, Your Honor–

Thurgood Marshall:

The same lock, and the same key.

Gerald A. Kroop:

–Let me say this to answer that.

Thurgood Marshall:

Is that correct or not?

Gerald A. Kroop:

Correct.

Thurgood Marshall:

Thank you.

Gerald A. Kroop:

Also on the first floor, all seven apartments had the same door with the same lock and the same key.

By your analysis, most respectfully, we cannot draw an inference that they could walk into all seven.

Antonin Scalia:

xxx If they were closed, and for all we know lockable.

Gerald A. Kroop:

That is true.

I am not arguing the facts.

I am not saying that the police didn’t act reasonably.

I think they did, as far as what was in front of them.

Antonin Scalia:

Mr. Kroop, it is no big deal in this case.

Antonin Scalia:

I mean, we are just talking about a little bit of marijuana, right, but–

Gerald A. Kroop:

Well, no.

Antonin Scalia:

–your argument would be the same had they found… had they found in walking into the wrong apartment, which they thought was the right one, they are behaving properly, and they find a murderer there, the same thing would be the case.

You have to let the fellow go.

Gerald A. Kroop:

Absolutely.

Antonin Scalia:

You don’t want to reward them for their mistake.

Gerald A. Kroop:

That’s correct.

Antonin Scalia:

And therefore you have to turn the murderer loose.

Gerald A. Kroop:

That’s correct.

The Court of Appeals–

Antonin Scalia:

Because otherwise you would be rewarding them for their mistake.

Gerald A. Kroop:

–No, because we want to look out to the future to protect the other people.

Sure, one murderer may go free.

Antonin Scalia:

You are not protecting anybody.

These people are doing all that they possibly could.

What are you protecting them from?

Gerald A. Kroop:

I don’t agree with that.

I don’t think the police did all they could in this case.

Antonin Scalia:

Well, now you are arguing whether it was reasonable or not, but we are assuming it was reasonable.

Gerald A. Kroop:

I am saying assuming arguendo it was, I still believe without any equivocation–

Antonin Scalia:

Who are you protecting then?

They are going to make the same mistake in the future.

Gerald A. Kroop:

–I am protecting you when you go into your chambers so when the police walk in for a warrant for Chief Justice Rehnquist they don’t bungle into yours by mistake.

Antonin Scalia:

They are going to make the same mistake because it was reasonable.

Anybody would have made that mistake.

It looked like one apartment, so how are you protecting me in the future?

They are going to make exactly the same mistake.

Gerald A. Kroop:

Not if we set up new guidelines.

For instance, let me address that.

In a multiple dwelling unit where we have approximately, I would think, 60 to 70 million people that we are talking about, and these people live that way in multiple dwelling units.

Gerald A. Kroop:

They leave the doors open.

It is convenient.

It is secure, very often, unlike Mr. Sachs, perhaps, they drape their clothes over their doors.

They do many things that you wouldn’t do in your castle.

Now, when the police come into a multiple dwelling unit, especially that unit, now, let’s look at–

Antonin Scalia:

A buzzer goes off and says I am a multiple dwelling unit.

Gerald A. Kroop:

–No, no.

Antonin Scalia:

They didn’t know it was a multiple dwelling unit.

Gerald A. Kroop:

Yes, they did.

Antonin Scalia:

How did they know it?

Gerald A. Kroop:

There were seven mailboxes and seven bells outside.

That triggered it off.

Here is what I am saying, that this multiple dwelling unit, unlike one of the fine units you find in Washington, where you have guards, and each unit is separate, this is an old home.

This is a home that used to be the residence of one person.

So therefore it doesn’t have the same integrity or outward appearance as the wonderful new condominiums would.

Antonin Scalia:

You are arguing it was not a reasonable mistake then.

I mean if you want to argue that, that is fine.

That is a merits argument that this was not a reasonable–

Gerald A. Kroop:

I am arguing… I am arguing obviously two ways.

First, I am arguing that I feel that the search was per se unreasonable because there was no warrant.

If the Court feels that I am off-base on there then I retract, take one step back, and say I don’t think the search itself or… not the search itself but the actions of the police were reasonable.

A solution when they walk into a multiple dwelling unit, especially ones in our cities that are absolutely inundated with multiple units, indeed, some of them probably within themselves have rooms where borders are rooming, the first thing they should do, and I don’t think this is unreasonable, is to walk in, come up to this third floor, and instead of scanning out and searching and seizing, the first thing they do is detain Garrison and detain McWebb.

Michigan versus Summers says they can.

Fine.

Let’s do that.

Then fan out, walk through the apartments to see precisely where they are, also for their own protection.

Walk through to make sure there is no one else hidden that is going to kill them.

Walk through to make sure there isn’t contraband being destroyed.

So it serves a dual purpose, and when they walk through, and before they search, and before they seize, they see the two kitchens, they see the bathrooms, and that triggers, we’ve got the wrong place.

They stop there, before they search and seize.

Gerald A. Kroop:

Then they inquire.

Byron R. White:

–What if in the process of just walking around for this security check they see contraband–

Gerald A. Kroop:

Coolidge versus New Hampshire.

I am saying that they have a right to walk in and they have a right to neutralize the premises and something is in plain view and it was stumbled upon, as this–

Byron R. White:

–Do you think they were rightfully in Garrison’s apartment?

Gerald A. Kroop:

–No.

First I argued no–

Byron R. White:

I thought you said they were.

Gerald A. Kroop:

–No, I said if I have to retract that.

I say as soon as they went through his threshold without probable cause for his apartment–

Byron R. White:

I understand.

Gerald A. Kroop:

–they violate it.

If you feel I am wrong I step back and say the entry into–

Byron R. White:

Garrison’s apartment was all right?

Gerald A. Kroop:

–In what regard, sir?

Byron R. White:

Well, do you say it was all right to enter Garrison’s apartment on your fallback position?

Gerald A. Kroop:

No, I do not.

I say it is per se unreasonable because they didn’t have a warrant for his apartment.

Byron R. White:

I know, but what about your fallback argument?

Gerald A. Kroop:

Fallback, I say if we allow them to walk in we have to put some guidelines on them, some bridles.

We can’t let them just run around a multiple unit searching and seizing and arresting.

Byron R. White:

So if they find–

Gerald A. Kroop:

In open view.

Byron R. White:

–after walking around as you say they could on your fallback argument, if they see a gun lying on the table they can’t seize it?

Gerald A. Kroop:

No.

A gun I don’t think is contraband.

Byron R. White:

You don’t say that or not?

Gerald A. Kroop:

I say they cannot seize it because it is not contraband under Article 2736(b) of our Maryland law, for instance.

Byron R. White:

All right, let’s get something else that is contraband.

Gerald A. Kroop:

Let’s get something that is obvious, heroin.

Byron R. White:

Yes, all right.

You don’t know really… you can’t smell it.

Gerald A. Kroop:

Well, it is marked heroin and it looks euphoric.

Byron R. White:

Yeah, it’s got a sign on it.

Gerald A. Kroop:

I mean, I am trying to say, yes, if they truly–

Byron R. White:

The bag says “Plain View Heroin”.

Gerald A. Kroop:

–Right, that’s it.

0 [Generallaughter.]

That’s it.

That’s precisely what I was getting to, but… then they can pick it up under Coolidge versus–

–And seize it.

And seize it, but stop the search.

Byron R. White:

All right.

Gerald A. Kroop:

Now go back to a magistrate, where you have always urged the police to do, get that neutral and detached magistrate, and say, look what happened to us.

While fanning out in this multiple unit we discovered heroin marked

“Heroin, Do Not Touch Unless You Are An Addict. “

Byron R. White:

Or unless you are a police officer.

Gerald A. Kroop:

We picked it up.

Here it is.

We want a warrant to search the rest.

Why is that not the reasonable way to handle it?

William H. Rehnquist:

Well, what is supposed to have been happening to the place while they went back to the magistrate?

Gerald A. Kroop:

They secure it.

There were six people on the team, Chief Justice Rehnquist.

They can secure that place.

They can secure it.

They can take Garrison and McWebb away, detain them all they want.

Remember, criminals don’t–

William H. Rehnquist:

Okay, your position is that the warrant simply didn’t cover Garrison.

Gerald A. Kroop:

–That’s correct.

William H. Rehnquist:

If you are right, why can they take Garrison away?

Gerald A. Kroop:

Well, they can detain him.

William H. Rehnquist:

Why?

Gerald A. Kroop:

Because you said so in your case of Michigan versus Summers.

You said it is reasonable when you walk in and have probable cause.

When you don’t determine who Mr. Garrison is in his cast, you can stop and detain him while you then go around searching while you have probable cause.

William H. Rehnquist:

Well, where was the probable… but I thought under your analysis there was no probable cause to search–

Gerald A. Kroop:

There is not.

I am taking my one step back.

William H. Rehnquist:

–Will you wait until I finish my question, please, and slow down just a little?

Gerald A. Kroop:

Excuse me.

Yes, Your honor.

William H. Rehnquist:

I thought that under your analysis there was no probable cause for entering Garrison’s apartment.

Gerald A. Kroop:

That’s correct, and I stand by that as my first proposition.

If this Court feels there was probable cause because they relied in good faith objectively on a warrant and had no way of knowing that it was not the correct McWebb apartment, then they walked in.

So I am saying at that point they had a right to walk through the threshold.

William H. Rehnquist:

But where is the probable cause to arrest Garrison?

Gerald A. Kroop:

There is not.

He is not arrested, he is detained.

William H. Rehnquist:

Well, what is the level at which they have to have to detain him?

Gerald A. Kroop:

They have a warrant, which this Court feels, many of the members, that that should give the police the right to search.

Certainly if they have the right to go to the privacy of the search itself they should have at least a right to detain.

That is an infringement on his Constitutional rights.

William H. Rehnquist:

It seems to me that your argument on this point is quite contrary to your argument on the rest of the case.

Gerald A. Kroop:

It is.

Yes, it is.

I agree with that.

It is very contrary to the rest of the argument.

I am trying to find two positions.

The position I am trying to drive home to this Court, we talk about the good faith reliance in Leon.

Gerald A. Kroop:

To me that… as a defense lawyer I wasn’t ecstatic with it, but it is reasonable.

It is logical.

It makes sense, because, as I said, for 70 years we have been urging the police to go to that neutral detached magistrate, seek him out.

If he makes a mistake, if he doesn’t apply the old ad valorem Spinelli two-pronged test, that is not the policeman’s fault.

The policeman, armed, in good faith, believing he has the right, comes in, so that makes sense to me.

That, I believe, is reasonable.

Sandra Day O’Connor:

Mr. Kroop, what if the policeman who goes to get the warrant is acting on the basis of information given him by a reliable informant who happens to be wrong, dead wrong, but the informant says you will find the marijuana in Mr. Garrison’s apartment.

A warrant is obtained for Garrison’s apartment and the police search pursuant to it.

Now, that is a mistake made by the police–

Gerald A. Kroop:

That’s correct.

Sandra Day O’Connor:

–but we are going to hold that that is okay?

Gerald A. Kroop:

I do not hold that okay.

I still say if it… I am sorry.

If the police… it is the correct apartment.

Sandra Day O’Connor:

They get the Warrant for the Garrison apartment–

Gerald A. Kroop:

Yes, because–

Sandra Day O’Connor:

–but it has been on a mistake made by the police and their informant.

Gerald A. Kroop:

–Well, you have already touched on that, I believe, in the case of Franks versus Delaware.

Sandra Day O’Connor:

Yes, we have said that is all right.

Gerald A. Kroop:

That’s okay.

And I can live with that.

Sandra Day O’Connor:

So that is a case of a reasonable mistake that is comparable to what is being urged here, is it not?

Gerald A. Kroop:

I don’t think it is.

I don’t think it is anywhere near the same, Your Honor, most respectfully.

That informant said go here, you will find X, Y, and Z.

They went to that location where the magistrate said, you go there.

He did go there.

But in our case–

Sandra Day O’Connor:

I thought you were taking the position that we had never permitted a mistake of fact on the part of the police or their informants–

Gerald A. Kroop:

–Oh, you did, you have.

Sandra Day O’Connor:

–to reach into the premises.

Gerald A. Kroop:

That’s correct.

I know of no case that allows that.

Sandra Day O’Connor:

Well, Franks versus Delaware.

Gerald A. Kroop:

No, Franks versus Delaware did not… Franks versus Delaware allowed you to go beyond the four corners of the warrant to show that the police willfully and wantonly presented facts into the warrant.

If the informant gives information that is totally, totally unreliable and not true but the policeman in good faith believes that, you have sustained the warrant, I think, but remember, it goes to the special place.

See, we are talking about the particularity clause.

Remember, if we continue with the Fourth Amendment wording it particularly describes the place to be searched or the person or property to be seized.

He went beyond that.

Even, if I recall, Justice White in his Leon opinion gave a caveat.

He said–

0 xxx.

Gerald A. Kroop:

–Well, in the opinion that you wrote, Your honor, that’s correct.

The caveat was that the particularity clause still must be served.

You still, Mr. Constable, must go to the right place and seize the right person and the right things that I say you can, and in this case they did not do that.

So, if it please the Court, if there are no more questions, I thank the Court for the opportunity to present.

John Paul Stevens:

Let me just ask you one more if I may.

Gerald A. Kroop:

Yes.

John Paul Stevens:

Do you think the warrant would be valid if it had left out the reference to McWebb?

What it says is, he has reason to believe–

Gerald A. Kroop:

No.

John Paul Stevens:

–on the person of McWebb there is, and so forth, and that on the premises known as, and so forth.

If you left out all the references to the individual which merely describe the premises the way the premises are described, would you then make the same argument?

Gerald A. Kroop:

I think the argument… we would have to look at the affidavit.

If the affidavit is signed–

John Paul Stevens:

The same thing in the affidavit.

Gerald A. Kroop:

–Pardon me?

John Paul Stevens:

The affidavit is written the same way.

Gerald A. Kroop:

Well, the affidavit mentions McWebb, McWebb, McWebb.

John Paul Stevens:

Yes.

Gerald A. Kroop:

Now, if the affidavit was totally silent and they didn’t know who they were looking for, I think there is a much stronger argument for this good faith or objective reasonableness.

Yes, I do.

I think that would make a difference, and maybe one day I will be back to argue that.

If I may, in light of the question, I still have time… I don’t want to belabor this–

Byron R. White:

Let me ask you, then, while you are at it–

Gerald A. Kroop:

–Yes, sir.

Byron R. White:

–on your fallback argument, let’s assume that it was proper to enter Garrison’s apartment.

At that point they saw marijuana.

Gerald A. Kroop:

Well, again–

Byron R. White:

Well, that is what the evidence is.

Gerald A. Kroop:

–That’s correct.

That’s correct.

Byron R. White:

And then they went ahead and that officer continued to search and found some other things.

Gerald A. Kroop:

But that marijuana does not give him the right to search.

Byron R. White:

But let’s assume all he did was seize the marijuana.

Gerald A. Kroop:

Yes.

That’s correct.

On my fallback argument Mr. Garrison could be convicted of marijuana.

Byron R. White:

Yes.

Gerald A. Kroop:

As it was he was found guilty of the heroin found in his dresser drawer.

Byron R. White:

Exactly.

Gerald A. Kroop:

He shouldn’t have had it.

He wasn’t obeying the law.

But the officer shouldn’t have been there to find it.

Thank you, Your Honors.

William H. Rehnquist:

Thank you, Mr. Kroop.

General Sachs, do you have any more?

You have five minutes.

Stephen H. Sachs:

Just briefly, if I may, Mr. Chief Justice.

The warrant was issued on the assumption that one third floor apartment existed and it was McWebb’s.

Stephen H. Sachs:

That assumption turned out to be a mistake.

The issue and the only issue is whether that mistake was a reasonable one or not.

With respect to Justice O’Connor’s point with respect to Hill, Hill resulted in the search of a premises.

It resulted in the kind of intrusion that Mr. Krupp was concerned about.

It was permitted because albeit it wasn’t a warrant case but it was permitted because the mistake in the belief that Miller was Hill was a reasonable one.

It led to, under the then existing scope of law, it led to the kind of search that we have here.

The heart of the matter, and a per se test will not answer the question.

Mr. Krupp in effect urges a per se test.

If the warrant turns out to have been mistaken it can never be good.

It is only a conclusion to say it was warrantless or it was beyond the scope.

The question that we must ask is why was it, if you want to analyze it as warrantless, warrantless, and why was it, if you want to analyze it as beyond the scope, beyond the scope?

The exceptions to the warrant requirement, the warrant requirement, warrants are presumptively reasonable.

Not to have one is presumptively unreasonable.

But all of the exceptions to the warrant requirement result in warrantless searches which are held by this Court to be reasonable because exigent, because not pursuit, because consent–

John Paul Stevens:

General Sachs, with respect to your first argument, not the good faith one, is your argument, do you think, entirely consistent with Massachusetts against Shepherd?

Wasn’t the same sort of defect in the warrant there just kind of somebody bungled a little bit?

Stephen H. Sachs:

–Well, I read Massachusetts against Shepherd, Mr. Justice Stevens, as a defect of law.

This was a legally… this was a legally invalid warrant.

This Court has held that.

John Paul Stevens:

But for the same sort of reason that you have here, there was a kind of a mechanical error.

Stephen H. Sachs:

Well, it falls in a sort of sui generis category that some could call a technical error.

I don’t think it is our burden to have to define whether it was or was not a technical error, but it is very distinguishable from this case.

It was not a mistake in the assumptions and facts that led to the signing and the execution of the warrant.

It was a ministerial mistake, perhaps, in the putting together of the papers for the warrant for which the police have been held by this Court not to be responsible.

Byron R. White:

General, could I–

Stephen H. Sachs:

Yes, sir.

Byron R. White:

–Suppose it was perfectly clear there were two apartments on the third floor and everybody knew it at the time the warrant was issued, but all you knew was that drugs were being sold out of the third floor, and everybody concedes there was probable cause to believe that drugs were being sold out of the third floor, but they didn’t know which apartment, and the warrant then authorized the search of both apartments.

Stephen H. Sachs:

It doesn’t sound to me in your hypothetical, Mr. Justice, that you have described sufficient probable cause to enter two different… two persons’ places just because one of them… this is the lady and the tiger… just because one of them is likely to be dealing drugs.

That is not this case.

This case is bottomed on the assumption, reasonable, we say, that only McWebb lived on that floor and there was only one apartment on that floor.

Stephen H. Sachs:

If we are wrong about that, if that was unreasonable, then the Court of Appeals was right, but for the wrong reasons, because it never asked the question, nor did it analyze it.

In asking ourselves this question, Mr. Chief Justice and members of the Court, we posited the Halloween prank.

Suppose that the numbers on all the doors in the 20 hundred block of Park Avenue were changed, reasonably, looking good, so that an objective observer couldn’t tell the difference, and the police simply went to the wrong house and found heroin.

That is a terrible intrusion on the innocent victims… not so innocent in terms of heroin, but innocent in terms of any probable cause of that search, and we come to the conclusion, and I hope by using this hypothetical I make the right assumption about what this Court would do, there is nothing the police did wrong.

There is nothing unreasonable about their conduct.

That is Hill, and that is this case.

Thank you very much.

William H. Rehnquist:

Thank you, General Sachs.

The case is submitted.