Massachusetts v. White – Oral Argument – November 28, 1978

Media for Massachusetts v. White

Audio Transcription for Opinion Announcement – December 11, 1978 in Massachusetts v. White

del

Warren E. Burger:

We’ll hear arguments next in Massachusetts against White.

Ms. Smith, I think you may proceed, whenever you are ready now.

Barbara A. H. Smith:

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

I’m Barbara A. H. Smith, I am an Assistant Attorney General.

I represent the Commonwealth of Massachusetts, the petitioner in this matter.

The Commonwealth seeks review of a decision of the Supreme Judicial Court of Massachusetts, which interpreted this Court’s decision in Miranda versus Arizona as requiring per say automatic exclusion of statements obtained in violation of the Miranda’s prophylactic safe-guards for the purpose of establishing probable cause for the issuance of a search warrant.

Specifically the Court held that it was err for the trial judge to had denied the defendant Charles Whites’ motion to suppress certain physical evidence, which had been seized pursuant to a search warrant.

The affidavit in support of the search warrant was based upon statements which the Trail Court had held should be suppressed to trail because they were obtained in violation of the waybill requirement of Miranda versus Arizona.

The Supreme Judicial Court therefore reversed the defendant’s conviction on four entitlements charging possession of the controlled substance with intend to distribute.

As the Commonwealth’s belief that the facts and the circumstances surrounding the taking of the statements at issue is a crucial relevance to the application of the exclusionary rule and therefore I will devote myself to explication of those facts with some particularity.

The motion to suppress both the Arresting Officer and the State Trooper, who received the statements, testified.

The Arresting Officer testified that on 2 AM in March of 1975, he was informed of a motor vehicle accident.

He proceeded to the scene of the accident and observed that a car had been driven over in an embankment knocking down several highway posts.

He observed the defendant Charles White in the car at the bottom of the embankment attempting to drive it back up.

The defendant asked the police officer for a push.

The officer determined that, that was not going to work.

At the same time, noticed that the defendant’s speech was slurred, his eyes were glassy and he noticed a strong odor of alcohol.

This time the police officer instructed the defendant to turn off the motor of the car to get out, instructed him that he was placing him under arrest for driving under the influence of liquor and he advised him on his rights under Miranda.

The defendant at this point expressed some concern that the dawn light of his car would not turn off and he was afraid his battery would run down.

However he agreed to accompany the police officer.

They then walked up the embankment and there was testimony from the police officer that the defendant did stagger but he walked up the embankment unassisted.

They were then met by the State Police Trooper, who agreed to have the car drove to the State Police Barracks and to go forward and arrange for a breathalyzer test.

When the defendant and the Arresting Officer arrived at the State Police Barracks, the State Trooper again advised the defendant of his right under Miranda, he advised him of right to remain silent, a right to have an attorney present, that anything he said wouldn’t be used against him and he had a right to have an attorney appointed.

He further advised him under Massachusetts law of his right to take or refuse a breathalyzer test and of the consequences of refusal, which in Massachusetts would be a 90 day suspension of license.

He further advised the defendant of his statutory right to make a telephone call and to have a blood test conducted at his own expense by his own physician.

The defendant responded as to the breathalyzer test that he felt he would loose his license either way so he as might as well take it.

He also indicated that he wanted to make some phone calls.

In the course of warming up the breathalysing machine, the defendant placed at least two phone calls, both of which were apparently in an attempt to secure the services of an attorney and to arrange for bail.

A part of these telephone conversations were overheard by both officers.

However he was apparently unsuccessful in retaining the services of an attorney at 2’o clock in the morning.

Barbara A. H. Smith:

Also there was testimony that in attempting to use the pay telephone, the defendant drop coins on the floor and had difficulty in picking them up.

A breathalyzer test was administered and the percentage by weight of the alcohol found in the defendant’s bloodstream was 13-100.

Under Massachusetts law, anything over 0.10 arises a statutory, rebuttable presumption that one is under the influence of alcohol for the purpose of driving a motor vehicle.

The State Police Trooper described the defendant during taking the breathalyzer test and making the phone calls as being in his opinion under the influence of alcohol that he was bouncing around, that he was scratching incessantly and that he was dropping coins.

However he also testified he had no trouble conversing with the defendant.

The defendant indicatedly understood this rights when given and that there was no interrogation of the defendant.

However prior to placing the defendant in a cell having completed all the arrangement procedures, the Trooper searched him and found a marijuana cigarette in the breast pocket of the shirt.

He at that time felt it was a new ball game and advised the defendant he would be charged with a possession of marijuana and again advised him of his rights under Miranda.

The defendant responded —

Warren E. Burger:

Wasn’t there some response on the defendant’s part at that time?

Barbara A. H. Smith:

At this particular this moment, yes Your Honor.

The defendant said something to the effect, ‘I don’t think possession of a single cigarette is a crime’.

The trooper responded, ‘well, do you have any more on your purse or in your car’ and the defendant responded, ‘yes, I have more in my vehicle’.

The trooper — then the defendant attempted to say ‘I can name you some biggies, apparently in reference to some narcotic dealers and the State Police Trooper said, ‘I don’t to hear anything more and placed the defendant in a holding cell.

He then prepared an affidavit and an application for a search warrant relating the arrest of the defendant and his response to the question about the marijuana cigarette, I want a cigarette.

Warren E. Burger:

In Massachusetts — would be have been able to get a warrant, without reciting the statement made that there was more material in the car that he was simply showing, the man was found in dubious condition of – disoriented condition and that he had a marijuana cigarette on his purse, would that be enough to support one to —

Barbara A. H. Smith:

No, Your Honor.

Warren E. Burger:

The search of the car.

Barbara A. H. Smith:

I don’t believe it, it would have and in fact in this case the Supreme Judicial Court and the Trail Judge himself found that the validity of the warrant was based on the statement that there was more in car, that they would not been enough without it.

Warren E. Burger:

It’s not — quite my question but is there no search, an inventory made at the car when it’s taken into possession off in the woods and brought into the —

Barbara A. H. Smith:

Yes Your Honor.

In the ordinary courts, there is provision for inventory.

Unfortunately the record in this case was never established that there was an inventory procedure at this particular State Police Barracks.

There was no evidence introduced on the motion to suppress as to an inventory and I really don’t feel that I could make that argument on basis of this record, but there are cases that would substantiate an inventory search, that when a car is brought in and in the process of being impounded –-

Warren E. Burger:

If an inventory search would be supportable and I say if, then how relevant is the warrant in all the other issues?

Barbara A. H. Smith:

Our Court found that quite relevant because the police never indicated that they would have —

Warren E. Burger:

Well, I know it should be found and now I thought what you are presenting to this Court, do you or do you not argue, but that since an inventory search would have been permitted with other warrant, but it doesn’t make any difference whether this one was or was not supported, do you make that argument?

Barbara A. H. Smith:

I have not made that argument because I don’t think the record fairly supports that argument.

If there had been evidence that an inventory was the normal course of procedure, then I would make that argument, I think the fact that the search warrant was invalid would not mitigate against the believability of the inventory search.

Warren E. Burger:

I thought you entered that the inventory search was the usual procedure but —

Barbara A. H. Smith:

It was never established that it is the usual procedure in the State Police Barracks that we’re dealing with in this case.

There was nothing in the record concerning an inventory search.

Potter Stewart:

Ms. Smith Isn’t it true that the common law did make the inventory search argument in the Supreme Judicial Court.

The Supreme Judicial Court rejected the argument straight on and then in your questions that you presented in your Se Petition, you did not raise that issue.

Barbara A. H. Smith:

That’s correct.

Potter Stewart:

So it’s not before us.

Barbara A. H. Smith:

Right Your Honor, that’s absolutely correct.

Then the Supreme Judicial Court didn’t rule on the – or they rejected because it was no evidence.

Potter Stewart:

But they rule squarely on a contention that the search could be justified on an inventory theory and you lost on that theory in the Massachusetts Supreme Judicial Court.

Barbara A. H. Smith:

Yes, Your Honor.

Following the motion to suppress.

Warren E. Burger:

If you can make the argument — [Inaudible]

Barbara A. H. Smith:

Following the motion to suppress the Trail Judge rule that the Commonwealth could not sustain or had not sustained its “heavy burden” of demonstrating that the defendant had knowingly and intelligently waived his right to self-incrimination right to counsel.

Based this conclusion on three findings.

One that the defendant had demonstrated a desire for counsel and then he placed two unsuccessful telephone calls to an attorney that the Trooper did not require regard the defendant having waived his right to counsel and that the defendant was under the influence having below than 0.13 reading on the breathalyzer Test.

However the court refused to suppress the evidence see as pursuant to the search warrant.

It did not believe the supression was required under the fruit of the poisonous tree doctrine.

He noted that Miranda did not preclude use for all purposes of evidence taken in violation of one of its safeguards and then there would be no deterrent affect of applying the exclusionary rule in this instance where the police have been scrupulous in their efforts to obey Miranda and that there was actually no actual coercion involved.

The Supreme Judicial Court reversed treating the Miranda violation as a violation of constitutional guarantees.

The Court held that statements therefore could not be used for the purpose of establishing probable cause for the — a search warrant; for to do so reasoned the court would imply Judicial sanction of the initial violation.

The Commonwealth submits that that Court below in reaching this conclusion has read much too broadly the exclusionary requirements of Miranda, but there is no constitutional requirements mandating exclusion of statements received in violation of Miranda for all purposes and that the fruit of the poisonous tree doctrine is not applicable in this case, where there is no initial constitutional violation and the application would have no deterrent affect.

The Court below we submit has incorrectly and inconsistently with this Court’s more recent cases, enucleated a violation of Miranda procedural safeguards, which are violation of protected constitutional rights.

The court below has interpreted Miranda as requiring per say automatic exclusion of statements taken in violation of these prophylactic safe guards for all purposes, such a position is not required by the constitution we submit and is inconsistent with the recent decisions of this court.

First, Miranda itself was limited to the admissibility of statement in the cross executions case in chief.

Recent decisions have continued to apply this probabition, that is the statements taken may not be admitted in the case in chief.

However they have permitted use of the statements for collateral purposes, specifically in Harris versus New York, and in Oregon v. Hass.

The statements may be used to breach credibility if they are otherwise trustworthy.

In Michigan versus Moseley, the court went one step further in rejecting any literal precipitation of Miranda, which would you — any statement taken after a suspect and votes his right to be remain silent as a productive compulsion to be mandatorily excluded, even if the statement is made voluntarily.

Rather the mandatory exclusion, the admission of the statement on submit depends on an examination of whether a defendant’s right to cut off questioning was fruitlessly honored.

Finally in Michigan versus Tucker this court holding that the testimony of a witness discovered as a result of the defendant’s statement, which had been taken in violation of Miranda, was admissible on the prosecution’s case in chief, specifically distinguished between police conduct, which directly infringed on the right against compulsively self incrimination and conduct which violated only the prophylatic rules.

Barbara A. H. Smith:

Common law suggests that certain conclusions may be inferred from these decisions.

One; the Miranda guidelines are not independent constitutional requirement.

Two that all police interrogation is not so necessarily and apparently coercive as to implicate the Fifth Amendment.

Third; the statements taken in violation of Miranda are not automatically excludable for all purposes, provided they are otherwise trustworthy.

Therefore the questions becomes —

Potter Stewart:

Even that’s how — how its certainly true that not all police interrogation is inherently coercive.

Wasn’t the thesis of the Miranda opinion that police interrogation of a person in the custody of the police, in custody, in restrain, wasn’t inevitably inherently coercive?

Barbara A. H. Smith:

I believe that was the premise of the Miranda decision Your Honor.

Potter Stewart:

Was this the premise of the whole?

Barbara A. H. Smith:

Yes, indeed I think it was.

Potter Stewart:

The judgment and opinion?

Barbara A. H. Smith:

However I do believe in my citation of some the recent cases indicates to me that this court has withdrawn from that presumption because otherwise if we are to assume that all police interrogation is necessarily and inherently coercive, and that it involves a Fifth Amendment.

Potter Stewart:

Not all police interrogation but all in police interrogation of a person in the custody.

Barbara A. H. Smith:

In custody, yes Your Honor.

In custody interrogation is necessarily and inherently coercive as to implicate the Fifth Amendment, then I would say it would be inconsistent for the court to hold that those statements may be admissible for certain purposes if they are otherwise trustworthy.

Traditionally if something – if a statement is listed in violation of the Fifth Amendment, in the sense that it’s involuntary, we don’t go any further, it’s inadmissible, we don’t even get to the trustworthiness of the statements.

Potter Stewart:

Well the Miranda opinion itself —

Barbara A. H. Smith:

Pardon me.

Potter Stewart:

The Miranda opinion itself which of course covered five different cases as you know, conceded that some of the statements and at least some of those cases were not involuntary statements in the traditional meaning of that word.

Barbara A. H. Smith:

That’s true.

Potter Stewart:

Isn’t that correct?

Barbara A. H. Smith:

That’s correct Your Honor, but it seems to me that the recent cases in this court interpreting Miranda and the scope of the exclusionary rule in Miranda have indicated a willingness to examine the circumstances and distinguish between police conduct, which actually abridges a right, were this actually coercion, psychological or physical, were there are threats, inducements, cajolery, promises.

If you actually examine the circumstances, and seems to be to reject a per say assumption that there is a sufficient coercive power at work because of his total interrogation to render the statement inadmissible because it’s in violation of the Fifth Amendment right against compulsion —

Potter Stewart:

The statement is admissible if a person is given his Miranda, so called Miranda warnings.

It is admissible.

Barbara A. H. Smith:

That’s correct but it’s also been held admissible for certain purposes with —

Potter Stewart:

If it’s involuntary, it’s inadmissible for any purpose.

Barbara A. H. Smith:

That’s correct but the fact that the violation of Miranda Your Honor —

Potter Stewart:

That is admissible if the Miranda warnings were given.

Barbara A. H. Smith:

Yes Your Honor.

William H. Rehnquist:

You’re pointed, I taken is that the recent Miranda cases from this court would not have out the same way if we had been dealing with confessions that were found to be coerce by nonetheless trustworthy.

Barbara A. H. Smith:

In one sentence Your Honor, what I am saying is that recent decisions wouldn’t have come out the way they have which admitted statements for some purposes which have been taken in violation of Miranda because of the lack of a warning in some instance, like of a waiver.

William H. Rehnquist:

You say that if those statements instead of having been taken in some violation of Miranda, had been found the court to be coerce, the input would have stopped there?

Barbara A. H. Smith:

That’s right and they would not be admissible for any purpose if they were coerced.

But the simple fact that they were in taken in violation of Miranda, did not lead this court to a conclusion that they were coerced without something more.

Warren E. Burger:

Right, but the corollary of that if they are given voluntarily after Miranda warnings, they are admissible.

Barbara A. H. Smith:

Yes Your Honor.

Warren E. Burger:

And if the court should conclude that it would not have to decide any other issues in the cases.

Barbara A. H. Smith:

That’s correct Your Honor.

Byron R. White:

You are contending there was not a violation of the Miranda?

Barbara A. H. Smith:

The court ruled that there was an violation of the waiver requirement.

Byron R. White:

Yes, do you challenge that?

Barbara A. H. Smith:

I challenge, I think that the court just review the challenge.

Byron R. White:

Or do you just challenge that even if they –- are you arguing that, even if there was, the evidence should be admissible?

Barbara A. H. Smith:

Even if, yes, oh yes Your Honor, even if they —

Byron R. White:

I know you are arguing that but are you also arguing the instructional question?

Are you attacking the decision – defining that there was a violation?

Barbara A. H. Smith:

I don’t think that the finding was constitutionally required Your Honor, you’re absolutely correct that there was a lack of knowing an intelligent waiver on this part.

Byron R. White:

So you can see there was as Miranda stated, there was a violation of the Miranda rules here?

Barbara A. H. Smith:

Yes Your Honor.

There is a violation of the waiver provision, which requires —

Byron R. White:

That was because of his indication that he wanted a lawyer.

Barbara A. H. Smith:

That was on two basis.

The indication he had wanted a lawyer, and the fact that he was under the influence of alcohol.

It was not on the basis and nor did the state court find although my colleague has suggested that the statement was involuntary, neither the state court findings of fact would support in finding of involuntariness, nor does the Supreme Judicial Court make any further findings which support our finding of involuntariness.

Potter Stewart:

What would be your position with respect to an arrested criminal defendant, who was under the influence of alcohol, who proceeded to recite a full confession of the acts which amounted to the commission of a crime?

Would you feel that was inadmissible?

Barbara A. H. Smith:

Would I feel it’s inadmissible?

No Your Honor, I would not.

I think the fact that he was under the influence is a factor to be considered but mere being under the influence of alcohol is not a determinate factor in deciding whether a statement is voluntary or not.

Warren E. Burger:

Do you mean it will be a factor that would be taken into account on the voluntariness?

Barbara A. H. Smith:

Yes Your Honor.

I think it should be a factor.

Warren E. Burger:

Well it’s all from the thought at least that alcohol tends to loosen the tongues, which you don’t think there is anything unconstitutional about, a loose tongued alcoholic confession?

Barbara A. H. Smith:

No, Your Honor, I don’t.

I also would like to make the distinction in Massachusetts, between being under the influence for the purposes of driving an automobile and being intoxicated.

In this case, we don’t have any evidence of intoxication.

We have evidence only of being under the influence and having certain mode or responses affected a spatial responses affected, but it’s not, say a Townsend versus Sain situation where the defendant has been injected with truth serum, which clearly is going to operate on the faculty by which he determines, whether or not to make the statement.

John Paul Stevens:

Ms. Smith in addition to the violation of Miranda, which you say relies on both the evidence that approaches intoxication and the fact that he tried to contact his lawyer.

What about just the second factor, the lawyer point.

Was there a violation of his to right to counsel?

Barbara A. H. Smith:

No Your Honor, I would say not.

In this instance, he never or there is no evidence that he ever advised the police officers that he wanted an attorney present before there was any interrogation.

John Paul Stevens:

But I think you indicated that they overheard his conversation and knew he was seeking the assistance of a lawyer and was dropping coins all over the floor?

Barbara A. H. Smith:

Yes and that would appear to be for the purposes of making bail, since there was no interrogation conducted at all in relation to the original charge of driving under the influence, I don’t see why the police should have suspected that he wanted an attorney present in a non-existent interrogation.

John Paul Stevens:

Do you think the case would be different if he had said unambiguously, I’d rather not talk to you until I consult my lawyer?

Barbara A. H. Smith:

Yes I do believe that that would make a difference Your Honor.

John Paul Stevens:

I see.

Barbara A. H. Smith:

Here he only indicated he want to make a phone call, he never indicated —

John Paul Stevens:

Well, if you think that would make a difference, is it – and I don’t think either the Trial Court or the Supreme Court made a determination of whether there had been an attempt to contact counsel kind of an Escobedo type point?

Barbara A. H. Smith:

No.

John Paul Stevens:

Is that conceivable the proper disposition of the case would be to send it back to determine whether his telephone call was the equivalent, I suppose one could argue it was substantially the equivalent of an attempt as for counsel.

Barbara A. H. Smith:

I don’t believe that the record would support that Your Honor.

In Escobedo situation, I’d suggest it’s entirely different —

John Paul Stevens:

For a sense of our —

Barbara A. H. Smith:

The situation here — there the counsel was present at the police station, the defendant requested to speak with his counsel, the counsel requested to speak with him, and the police firmly denied those requests.

Here the police officer never cut off his authority to make the phone calls.

He made no attempt to interrogate him and in fact the only question, if you can even call that an interrogation, came on a separate charge after a new set of warnings had been given.

It was in response to a conversation initiated by the defendant himself.

John Paul Stevens:

The thing that poses me about this case is why the officer – when the man mentioned he had some information about the biggies, why the office didn’t say, tell me about them?

John Paul Stevens:

I just don’t understand it, why he wouldn’t be interested in knowing it?

Barbara A. H. Smith:

Well, he may have been interested but he may have felt that any interrogation of the defendant at that time would be improper.

John Paul Stevens:

Why I wonder?

Potter Stewart:

The defendant was drunk, isn’t that why?

Barbara A. H. Smith:

No, Your Honor, the defendant was not drunk, the defendant registered a 0.13 on the breathalyzer, which would show that he was under the influence of —

Potter Stewart:

Well, in any event, the policeman apparently accurately predicted the later decisions of the courts of your state.

Barbara A. H. Smith:

Yes Your Honor, I think the police officer was attempting throughout in the number of warnings given and his whole demeanor to follow the dictates of this Court and the Courts of Massachusetts.

However if I may just briefly —

John Paul Stevens:

I can just perceive it with one more question if I may.

Isn’t that correct that in your view of the law is followed by this court?

In a future identical situation the officer would be well advised to pursue the interrogation to find out about the biggies?

Barbara A. H. Smith:

No, I don’t think he would be well advised to do that.

John Paul Stevens:

Why not?

Barbara A. H. Smith:

Why take the chance Your Honor, get right back in the situation here.

John Paul Stevens:

(Voice Overlap) is right, I mean —

Barbara A. H. Smith:

If my view of the law is that –

John Paul Stevens:

He would not be able to use the statement against the man himself, but he would be able to use the information for further investigative purposes and it might lead to the discovery of other evidence which would be entirely admissible.

Barbara A. H. Smith:

Your Honor there — I think the – again look at the circumstances.

Here we have an unintentional violation and I think that is important in determining whether the evidence subsequently obtained is actually attainted by the Miranda violation.

Now if we had a situation where the police are going to violate Miranda rules in the hope that they may elicit some evidence that may be used in some other way, then I don’t think that contact is going to found to be permissible, because there we have a dictation of conduct —

John Paul Stevens:

It is not exactly what this officer did.

He said, don’t you have anything in the car?

Barbara A. H. Smith:

He did Your Honor and I suggest that that was in a response, quite natural response to a conversation initiated by the defendant.

John Paul Stevens:

I don’t know why it wouldn’t have been equally natural to say, when he said, I know a lot about the biggies, who are they?

I don’t know why one is anymore natural than the other, thats puzzles me.

Barbara A. H. Smith:

Well, even if he had done that, would that render the evidence more or less reliable for uses for establishing probable cause?

John Paul Stevens:

No it wouldn’t, and it seems to me that if you win, that’s exactly what police officers ought to do, they ought to follow-up on these leads to get the evidence.

Barbara A. H. Smith:

Your Honor, if they can follow-up on the leads without —

John Paul Stevens:

There is nothing wrong with it under your theory as I understand it because his constitutional rights are not violated unless his own statement is used at the trial, at his trial against him.

Barbara A. H. Smith:

Unless there is some element of coercion or trickery.

John Paul Stevens:

Right, yeah.

I don’t understand, you are not taking the broad position, alright, I am just a little puzzled that any derivative evidence may be used in the trial other than the statement itself as long as it’s not coercive in a constitutional sense.

Barbara A. H. Smith:

Yes, I am taking that position.

John Paul Stevens:

Well then if you are, you should say that they could ask him about the biggies then.

Barbara A. H. Smith:

Possible they could ask him about the biggies.

John Paul Stevens:

Well, may not possibly, but definitely they can.

Barbara A. H. Smith:

But as long as we don’t get into a situation where the police actually are abusive or coercive in a sense that the statement is derived in violation of his Fifth Amendment rights.

John Paul Stevens:

Right, but that wouldn’t be – that wouldn’t violate his Fifth Amendment rights.

Barbara A. H. Smith:

In that sense, then I would argue that the derivative evidence could be used and to the point —

John Paul Stevens:

So you do agree then that in the future if you win this case, they ought to be able to ask about the biggies?

Barbara A. H. Smith:

Yes, Your Honor.

Warren E. Burger:

Alright.

Barbara A. H. Smith:

I do.

May I reserve?

I think I have few minutes.

Warren E. Burger:

Mr. Cohen?

Robert S. Cohen:

Mr. Chief Justice, may I please the court.

My name is Robert S. Cohen and I represent the respondent Charles F. White.

Respondent contends that the decision of the Supreme Judicial Court of Massachusetts lacks finality and is not a final judgment under 28 U.S.C. Section 1257(3).

Additionally respondent submits that because of the decision of the Massachusetts Supreme Judicial Court, it is unclear as to whether it is based on the Massachusetts constitution or on the constitution of the United States that this honorable Court should either remand the case back to the Supreme Judicial Court for clarification of its decision or if it decides not to do that, and not remand the case back to, the court should dismiss the Writ of Certiorari as being improvidently granted.

As concern to the merits of the case, respondent contends that the Supreme Judicial Court is correct in ordering suppression of a contraband and money obtained under a search warrant, which was based on information secured in violation of constitutional guarantees.

Potter Stewart:

Your fourth choice then is to affirm the Supreme Judicial Court?

Robert S. Cohen:

My third choice Your Honor.

I would suggest that it either be remanded or that the writ be dismissed as improvidently granted or that the case be affirmed.

Addressing the jurisdictional questions first, respondent contends that since he is subject to further proceedings in the Commonwealth of Massachusetts, including a new trial that the Supreme Judicial Court’s decision is not final.

It is submitted that the denial of Certiorari for lack of a final judgment in Cohen versus New York, 385 US 976 demonstrates that there is no unvarying rule that all decisions of a state’s high court concerning a motion to suppress evidence a final for purposes of jurisdiction under Section 1257(3).

Turning to the issue of independent state grounds, respondent contends that the decision of the Supreme Judicial Court is unclear as to whether it’s based on the Massachusetts constitution or the federal constitution.

Thurgood Marshall:

Why do the Supreme Judicial Court of Massachusetts not only cite Miranda but quote from it?

Robert S. Cohen:

Well Your Honor, please beside —

Thurgood Marshall:

Is that just, what?

Robert S. Cohen:

I think Your Honor, please — It is still unclear because in addition to besides citing Miranda, besides to Massachusetts.

Thurgood Marshall:

But do they cited and quoted it.

Robert S. Cohen:

They cited Miranda Your Honor.

They also cited the two Massachusetts cases, when they were directly talking about the point in the case.

Thurgood Marshall:

Well I didn’t get you, you draw the conclusion that you relied on both.

Robert S. Cohen:

I am saying that it’s unclear, yes Your Honor.

Thurgood Marshall:

Can’t you say as both or —

Robert S. Cohen:

It’s both, Your Honor.

It’s unclear whether it was relied on one or either of them.

Thurgood Marshall:

Then your opponent is gone if it is both.

Robert S. Cohen:

I would say not Your Honor if it is relied on both, my understanding of the law is that it would be in independent state ground.

Thurgood Marshall:

Give me a citation, that way, they relied on both.

Robert S. Cohen:

I believe Your Honor California versus Acevedo, when this case was remanded back down to the California Courts, they said that they relied on both and that the latter.

Thurgood Marshall:

And tell me what, this court said that?

Robert S. Cohen:

No, the California court Your Honor.

Thurgood Marshall:

Well, I may ask, when did this court say that?

Robert S. Cohen:

It’s my understanding Your Honor, please that in —

Thurgood Marshall:

We sent it back to the —

Robert S. Cohen:

Back to the state court if that is a basis for upholding the decision, yes Your Honor.

Thurgood Marshall:

Why don’t you stick on it instead of the other one?

And requests would be sent back to determine that point.

Robert S. Cohen:

Well I say Your Honor please that the case is seem to indicate in independent state grounds that the court has taken two approaches.

It is either remanded the case back apparently.

Up to the 1920s, the standard approach was to dismiss the writ as being improvidently granted.

After that the court has taken two approaches.

In some cases they have dismissed the writ as being improvidently granted and other cases they have remanded the case back for clarification.

Thurgood Marshall:

This court dismisses improvidently granted cases before 1920.

Robert S. Cohen:

I am sorry Your Honor.

I didn’t hear the question.

Thurgood Marshall:

I thought, when did this court start the dismissal?

Robert S. Cohen:

I believe Your Honor that the change came in Herb v. Pitcairn in the Minnesota-Tea case where at least in Herb v. Pitcairn, Justice Jackson said that pursuant consistent with the, if I may quote Your Honor?

Thurgood Marshall:

That was in 1940?

Robert S. Cohen:

No, the Herb v. Pitcairn case was late Your Honor.

I believe the National Tea case, Minnesota-National Tea was early on.

Thurgood Marshall:

I don’t think that Judge Jackson was here in 1920.

Robert S. Cohen:

No, in Herb v. Pitcairn, he was Your Honor when he cited in that case —

Thurgood Marshall:

I don’t be surprised then because it’s not important one way or the other.

All I am trying to say is why don’t make this is a separate point that the court did not rely Miranda but say that it could have been charged and relied on both and therefore sent it back.

Robert S. Cohen:

I thought that’s what I was saying Your Honor, apparently I wasn’t saying it too clearly.

Thurgood Marshall:

Then I am sorry.

Robert S. Cohen:

I apologize for not expressing myself more clearly Your Honor.

Potter Stewart:

But the point is if it’s not clear, whether or not the state court relied upon an adequate and independent state ground, then it’s encountered upon this court to remand it to determine whether or not it did.

I think it’s clear that the judgment rests upon an adequate and independent state ground and this court simply has no jurisdiction.

Robert S. Cohen:

That’s correct Your Honor.

It should be dismissed if it is clear, If its unclear, then the case should be refused.

Potter Stewart:

Nothing inconsistant between that.

Robert S. Cohen:

I agree Your Honor.

John Paul Stevens:

And if it is clear from the opinion that it rested both on the Massachusetts constitution and the federal constitution, then it does rest on an adequate statement.

Robert S. Cohen:

That’s correct Your Honor, yes.

John Paul Stevens:

It must be dismissed.

Robert S. Cohen:

Must be dismissed Your Honor.

Lewis F. Powell, Jr.:

The Supreme Judicial Court was quite well aware in its footnote deciding after a month that it was — if had had available toward the Massachusetts constitution and didn’t have to decide whether there was a state federal question there, was it not?

Robert S. Cohen:

I believe so Your Honor but this case in my opinion does not an opulent inventory situation but only presents a situation of the use of illegally obtained statements.

Lewis F. Powell, Jr.:

All I am saying is that why when it was so clearly aware that it could rest the decision either on the federal or state constitutions in the Opperman footnote, did it lean so heavily on Miranda here?

Robert S. Cohen:

Well I don’t think that they did lean so heavily in Miranda Your Honor.

I think they leaned heavily on the two prior stated Supreme Judicial Court of Massachusetts cases, indeed Your Honor, please the court stated that from these cases it follows, making reference to two Massachusetts Supreme Judicial Court cases, from these cases it follows that neither made such statements.

Lewis F. Powell, Jr.:

Where are you reading it from?

Robert S. Cohen:

I am reading Your Honor please, appendix 78.

The third complete paragraph Your Honor.

The paragraphs down the bottom.

Robert S. Cohen:

From these cases, it follows that neither made such statements be used for the purpose of considering whether there was probable cause to obtain a search warrant.

To hold otherwise wouldn’t affect sanction the initial violations of constitutional guarantees which the Judge found took place in the Police Barracks.

The need to prevent such violations from escaping review underlines the so called fruit of a poisonous tree doctrine, set forth in Silverthorne Lumber Co. versus United States and Nardone versus United States.

Although this exact issue has not been determined by the Supreme Court, but Cf. Michigan versus Tucker, we believe that Hass controls the issue in this Commonwealth and I am saying that when the Supreme Judicial —

Lewis F. Powell, Jr.:

But that wasn’t Hass decided on the basis of the federal constitution?

Robert S. Cohen:

No Your Honor.

A look at Hass and Hall the two cases cited by the Massachusetts Supreme Judicial Court in both Hass and Hall, the Massachusetts Supreme Judicial Court relied on both Massachusetts state cases and Commonwealth versus Penta and on Miranda.

Potter Stewart:

I see.

Well they may have relied on some previous Massachusetts cases, but what did those cases rely on?

Robert S. Cohen:

I am sorry Your Honor.

I was just made a reference to the fact that the two cases they relied on were Commonwealth versus Hall and commonwealth versus Hass.

Those two cases relied on Massachusetts state cases, Commonwealth versus Hall.

Potter Stewart:

I understand, but what did those cases in turn rely on?

Were those interpretations of the federal constitution?

Robert S. Cohen:

They were interpretations of constitutional rights Your Honor.

Potter Stewart:

Which federal constitutional rights?

Robert S. Cohen:

Well, the Commonwealth and Hall, that was search and seizure, that’s the Fourth Amendment case. Commonwealth versus Hass —

Potter Stewart:

Was the federal — did it deal with federal constitution?

Robert S. Cohen:

It’s unclear again from those decisions, which constitutional rights they were talking about?

Potter Stewart:

You just said the fourth amendment issue?

Robert S. Cohen:

I agree with you that certainly the federal Fourth Amendment issue was involved and I would say Your Honor, I don’t know if council argued or if the emotion to suppress in that case alleged the state grounds.

The emotion to suppress in this case alleged state grounds along with federal grounds.

Potter Stewart:

May be, but just because the court here cited some previous Massachusetts cases doesn’t indicate to me that there was a state ground involved.

Robert S. Cohen:

Well I would say Your Honor the further evidence of the states —

Potter Stewart:

Those states might just have been interpretations of the federal constitution.

Robert S. Cohen:

Well, I would say that further evidence of a state ground Your Honor whereas that this is not a case where the Supreme Judicial Court has reluctantly applied federal constitutional standards.

This is a case where the Supreme Judicial Court suppressed the evidence.

Potter Stewart:

I will ask you this.

There is no mention of the state constitution in this opinion.

Robert S. Cohen:

That’s correct Your Honor.

Potter Stewart:

Was there any mention of the state constitution in the two state cases that this opinion cited?

Robert S. Cohen:

There is no direct mention of it made Your Honor please.

Potter Stewart:

Well, was there any direct mention of the state constitution, any of the state cases that these two cases cited?

Robert S. Cohen:

No, Your Honor please.

But I would say Your Honor that, that particular fact does not in itself say that the case is not ambiguous.

The cases seem to indicate that if the thing was cited directly, then it would be clear; there would be no problem.

Here the respondent is arguing that it is unclear and because of being unclear consistent with the respective of the highest courts of States of the Union, as Justice Jackson said, then the Supreme Judicial Court should be asked and not be told.

Potter Stewart:

Well, that’s just an argument; they got it remanded under the Fifth Amendment.

Robert S. Cohen:

Yes it was remanded.

Potter Stewart:

But am I right Mr. Cohen, I’ve been reading some recent opinions of your Supreme Judicial Court and I have been interested that it has often — these opinions often wind up and we are resting this decision on our state constitution and not on the constitution of the United States.

That is a new practice of your court?

Robert S. Cohen:

Well, I think Your Honor, we are just attempting now to be more clear because of the fact that the Supreme Court of United States may differ with them at certain policy issues.

Indeed the case that I submitted to the court after the filing of my brief, Selectmen of Framingham versus the Municipal Court of the City of Boston was a case, with this court, client to apply United States versus Janis and said that in order to uphold public confidence in the law and judicial integrity and to control misconduct of the police, they would not allow into a civil service hearing evidence that was derived in violation of the Fourth Amendment.

Potter Stewart:

But here they did say, I think it’s one I am checking out.

Robert S. Cohen:

They did Your Honor please.

Potter Stewart:

That they are resting it squarely on their constitution that they did not agree.

Robert S. Cohen:

That’s right.

That would be clear — If that case was up here, it’s clear.

I am saying that this case is not clear Your Honor.

Potter Stewart:

Well, what you are saying at most then is that this ought to be cripped sent back to reconsideration?

Robert S. Cohen:

That’s correct Your Honor, yes.

Potter Stewart:

They rested on a statement, constitutional ground as well as the federal ground.

Robert S. Cohen:

That’s correct Your Honor.

John Paul Stevens:

Mr. Cohen, I think there is another problem with your argument here, the Massachusetts law as I understand, had taken most favorably to you is that, if there is a constitutional violation, then the derivative use of the evidence obtained by means of the constitutional violation cannot be used to get a search warrant.

Robert S. Cohen:

That’s correct Your Honor.

John Paul Stevens:

However your opponent challenges the existence of the constitutional violation.

His argument is that Miranda properly construed does not involve the constitutional violation.

And as to that point, Massachusetts Supreme Court relied only on federal law I think.

Robert S. Cohen:

You make reference to the waive Your Honor?

John Paul Stevens:

The question whether the violation of the teaching of Miranda is a violation of the constitution.

Robert S. Cohen:

I differ with that Your Honor.

That’s when they cited the two cases, the two Massachusetts cases in that section on the appendix —

John Paul Stevens:

Well, then on page 78, they are talking about assuming a violation of the constitution, may the evidence nevertheless be used to get a warrant.

That’s what the issue they were discussing.

Robert S. Cohen:

It says, Your Honor, from these cases it follows that neither may such statements be used for the purpose of considering whether there was probable cause to obtain a search warrant.

I was going to address those issues currently —

John Paul Stevens:

In the first sentence of preceding paragraphs in the Hall case, we recognize that evidence obtained in violation of constitutional guarantees (Inaudible).

Robert S. Cohen:

I am saying that, that could refer to the Massachusetts constitution, the United States constitution, or both.

It doesn’t say federal constitution Your Honor.

It says constitutional guarantees.

Thurgood Marshall:

Well, have you read — [Inaudible]

Robert S. Cohen:

Hall, I have Your Honor.

Thurgood Marshall:

If it was a constitutional guarantee, is that state or federal.

Robert S. Cohen:

I would say that it’s unclear Your Honor.

Thurgood Marshall:

No, no, is it state or federal?

Oh, it’s unclear.

Robert S. Cohen:

It’s unclear.

In that case, they do not specifically say federal constitution Your Honor.

What happened – Hall was a case of what’s — basically one of the points that it went often was United States versus Giordano but the — of this court, but the Supreme Judicial Court did not apply United States versus Giordano in total.

So it is unclear in that case also whether it is a combination of both or based on just the federal or the state.

Thurgood Marshall:

But Halls did talk about Miranda.

Robert S. Cohen:

No, Your Honor, Hall stands for the proposition that evidence —

Thurgood Marshall:

(Inaudible) in Miranda v. Arizona.

Robert S. Cohen:

That’s not in Hall Your Honor.

That’s Hafas Your Honor.

Thurgood Marshall:

I thought I said Hafas.

Robert S. Cohen:

I am sorry Your Honor.

I didn’t hear, I thought you was saying Hall, because Hall was other case we cited.

Yes Hafas involved a Miranda situation and it also involved —

Thurgood Marshall:

So we would have to go back and read them off.

Robert S. Cohen:

Yes, that’s it Your Honor.

I say it should be sent back because of the confusion.

Turning to the merits of the case at bar, respondent respectfully suggests five interrelated arguments in support of his contention that the unanimous decision of the Supreme Judicial Court of Massachusetts should be affirmed.

Number one; the questioning of the respondent, absent of valid waiver and under the circumstances of the case at bar violated both Miranda versus Arizona and the Fifth Amendment.

Number two that the evidence obtained pursuant to the execution of the search warrant in this case must be suppressed because its admission would violate Miranda, the Fifth Amendment and the policy under the fruit of a poisonous tree doctrine.

Warren E. Burger:

Is the testimony — your argument then is that by having this statement you used as a basis for getting the warrant, that’s testimony being used against him?

Robert S. Cohen:

Yes Your Honor please.

Warren E. Burger:

What if the search had produced nothing?

Then would the statement be a statement of his own which is used against him in violation of the Fifth Amendment?

Robert S. Cohen:

Well, the state would not be able to be used in court Your Honor and I am saying that besides the statement not being able to be used in court, the results of the search warrant should not be able to be used in court in the – at least in the prosecution’s case in chief.

Potter Stewart:

Mr. Cohen, you very carefully stated twice that this evidence was obtained in violation of both Miranda and the constitution of guarantee.

Robert S. Cohen:

That’s correct.

Potter Stewart:

Apparently you have to accept the suggestion of your opponent that there is a distinction between —

Robert S. Cohen:

Well, no I do not Your Honor, I say that the holding in Miranda must be based on the constitution that this Court has no power to regulate or supervise state court’s absent a constitutional basis, and that at least this concerns the waiver requirements of Miranda but that has to be constitutionally mandated.

Potter Stewart:

What you do with Michigan against Tucker?

Robert S. Cohen:

Michigan versus Tucker can be distinguished on many points Your Honor.

Michigan versus Tucker was a pre-Miranda case.

Potter Stewart:

Rely on the fact that it was before the Miranda.

Robert S. Cohen:

Yes, Michigan versus Tucker, the wrong in Michigan versus Tucker was the police did not tell the defendant that he would be furnished free counsel.

The wrong here was not of one of the warnings but the inability of the defendant to waive his constitutional rights; it goes to waiver, and not warnings.

Number three; the respondent here wanted counsel.

He was trying to reach counsel whereas in Michigan versus Tucker, the defendant in that case did not want counsel.

Number four; in the case at bar —

Potter Stewart:

Just stopping you just for a moment on the counsel point. Do you arguing dependently there was a violation of the Sixth Amendment?

Robert S. Cohen:

That’s correct Your Honor.

William H. Rehnquist:

Do you thing anything survives of Escobedo after Johnson versus New Jersey?

Robert S. Cohen:

I am sorry Your Honor, I didn’t hear the question.

William H. Rehnquist:

Do you think there is anything left of Escobedo against Illinois after this court’s pro curium decision in Johnson versus New Jersey in 384 US?

Robert S. Cohen:

I would say certainly Your Honor because Escobedo was cited with approval in Brewer versus Williams.

I would say that a combination of Brewer versus Williams and Escobedo results in the determination that the introduction of this evidence would violate the Sixth Amendment the right to counsel.

Robert S. Cohen:

The respondent’s fourth argument besides the violation of Miranda and the Fifth Amendment and the right to counsel is that under the standards annunciated by this Court in United States verus Giordano 416 US 505, both the majority and the dissenting opinions that the evidence should be suppressed.

In Giordano, the majority of this Court said that a pen register application was based on illegally (Inaudible) evidence and therefore the results obtained from the pen register must be suppressed.

Mr. Justice Powell in descent in part said that standard should not be a critical element as the major indicated, but the standard should be whether they are absolutely a legally attained information.

They assert the application for the search warrant was sufficient to establish probable cause.

In the case at bar, the Supreme Judicial Court and the Superior Court Judge found that unquestionably, the application for the search warrant looked at without the illegally obtained information was not sufficient to raise the level of probable cause.

So respondent suggests that under United States versus Giordano, both the majority and the minority standards has been met.

Finally if it please the court, the respondent suggests that assuming arguendo that only the Miranda prophylactic safeguards were violated and not the constitution, and respondent previously suggests that it was a constitutional violation.

But assuming arguendo, then only the prophylactic safeguards were violated.

The respondent argues that the evidence should be suppressed.

The respondent says the evidence —

Warren E. Burger:

We’ll resume there at 1’o clock.

Robert S. Cohen:

Thank you.

Warren E. Burger:

Counsel, you may resume.

Robert S. Cohen:

Thank you.

Mr. Chief Justice, may I please the court.

I will continue to address my arguments to the Fifth Amendment question involved, namely whether the fruits of evidence sees this result of the statement should be held suppressible.

Responsible contends that the Fifth Amendment by its own terms requires suppression in the case at bar.

Unlike the Fourth Amendment, the Fifth Amendment is directly concerned with the introduction of tainted evidence at trial.

Primary purpose of the privilege against self incrimination is protecting the individual against being compelled to furnish evidence to convict him in a criminal trial.

Respondent suggests that the Fifth Amendment interests involved in the immune of the cases are equivalent to those interests in the case at bar.

In both instances, at bar to the use of evidence, reinstates the parties to their respective positions, and upholds the privilege against self incrimination.

Concerning the respondent’s final argument namely that even if Miranda, even if the Fifth Amendment and Sixth Amendment were not violated that even under the rational of Michigan versus Tucker that the evidence in the case at bar should still be suppressed.

Respondent respectfully suggests that the interests of Michigan versus Tucker that the government in making all available evidences to the persons or people who have to determine the facts is outweighed in the case at bar by the need to deter police misconduct by concepts of judicial integrity and by the very nature of our accusatory system of justice.

It is submitted that the allowance into evidence of the property seize pursuant to the search warrant would encourage police violations of the law because they will have everything to gain and nothing to lose by interrogating defendant without obtaining a valid waiver.

Suppression of the contraband and money is necessary to exhibit to the police the fact of judicial disapproval and makes constitutional rights credible to the police.

Respondent also suggests the doubt as to the effectiveness of the Fourth Amendment exclusionary rule in deterring police misconduct is not applicable to the Fifth and Sixth Amendment area of the case at bar.

This is so is because one legal scholar has pointed out the predominant goal of interrogation is to obtain evidence for it’s used in court.

Therefore police conduct in this area is likely to be responsive to judicial rules of exclusion.

Additionally the respondent respectfully suggests that the good faith factor mentioned in Michigan versus Tucker is not applicable to the case at bar.

The interrogation in this case was post-Miranda and the respondent repeatedly attempted to secure counsel and never abandon his effort.

Robert S. Cohen:

Indeed the State Trooper questioned the respondent knowing that Mr. White had not waived his rights to silence and to counsel.

That’s what the Superior Court and the Supreme Judicial Court found.

Alternatively respondent argues that some policy reasons argue against the use of a good faith defense in situations like the case at bar.

A good faith defense puts the premium on ignorance of the law and would be an additional – it would add an additional and exceptionally difficult fact finding process to the already overburdened criminal law process.

Further the existence of such a defense could generate uncertainty and invite calculated risks on the part of the police, thereby defeating the primary goal of Miranda to give to the police concrete constitutional guidelines.

William H. Rehnquist:

Counsel, what’s your reply to Mr. Justice White’s concurring opinion in Stone v. Powell that exclusion of evidence obtained in good faith will never have a deterrent effect because if people are acting in good faith and reasonably they will presumably do the same thing again.

Robert S. Cohen:

Well, I would say that number one, the police officer in this case did not act in good faith.

The evidence indicates that the police officer knew that the respondent had not waived his rights to counsel and his right against the self incrimination.

Number two; I would say that there was certainty in the law right now, namely the police should know and hopefully do know, that they can not interrogate defendants without giving the Miranda warnings and without the waiver that is required under Miranda.

Adding into a good faith, defence would make this objective determination as to the police officer, it would aid a police officer who was ignorant, it would not result in police officer seeking additional training to try to learn the law and —

William H. Rehnquist:

But if we get conflicts between Courts of Appeals and the State Supreme Courts on Miranda points.

Isn’t it expecting an awful lot that the police officer on the beat is going to be a final arbiter and not authorized to know about the Miranda document.

Robert S. Cohen:

I think up to this time the law was clear Your Honor, namely without the waiver and without the warnings of Miranda, no evidence can be used, that’s what Miranda said and that basic issue, I don’t think a subject to attack.

Potter Stewart:

Then what is a waiver?

Robert S. Cohen:

I am sorry.

Potter Stewart:

There is quite a difference of opinion about what a waiver is?

Robert S. Cohen:

Well, that’s true Your Honor.

It seems that waiver can be different in Fifth Amendment situations and different in Sixth Amendment situations, but we have a finding here by the Superior Court, which was upheld by the Supreme Judicial Court that there was no waiver.

The respondent would respectfully suggests then these circumstances that couldn’t be a waiver, the respondent was described as not knowing what he was doing, as bouncing off the walls.

This isn’t a case as the government has argued of some motor impairment; this is a person who is described in testimony as not having control of himself.

It’s not a simple case of just having had a 0.13 on a breathalyzer test, there is much more here than that.

This person could not make a voluntary statement, because of the problem with his faculties.

Potter Stewart:

I think you would say then that there would be no way that the police having illicitly heard that there was additional drugs in the car.

They could no way get into the car.

Robert S. Cohen:

Well, I would think Your Honor that in order to seize contraband, a limited exception could be created that would allow the police only to seize the contraband because of the nature of contraband —

Potter Stewart:

Are you suggesting then that if the police said, the officers said, well I know I shouldn’t have heard this, but I have heard it, I do know there is contraband in the car, so I will just enter the car and take the contraband.

Robert S. Cohen:

Well that he had overheard it on the telephone conversation, there would be no interrogation and Miranda would not be applicable Your Honor.

Potter Stewart:

Well I know, but let’s just assume that he heard it from him, like he did.

Robert S. Cohen:

Yes, after interrogation.

Potter Stewart:

Could he use it at all to get into the car?

Robert S. Cohen:

I would say Your Honor.

Potter Stewart:

Not even to seize contraband.

Robert S. Cohen:

The only limited exception would be because of the nature of contraband, to seize contraband, certainly it cannot be used —

Potter Stewart:

Would there be an exception or not?

Robert S. Cohen:

I would argue that there shouldn’t be Your Honor but if there was going to an exception, then that should be the —

Potter Stewart:

So your answer is, no there would be no way they could get into the car.

Robert S. Cohen:

I would say that they should not be or on the alternative, if the Court did see (Inaudible) exception —

Potter Stewart:

Although the police know there is contraband in the car, there is nothing they can do about it because of this violation of Miranda.

Robert S. Cohen:

I am not saying that they couldn’t Your Honor, I am saying that I would argue that they should not be able to and if it was founded they should —

Potter Stewart:

That said, your view is that constitutionally they are forbidden to get into the car?

Robert S. Cohen:

Yes or in the alternative, if they were able to go into the car, it’d only be to seize the contraband, not to present that contraband in evidence in a criminal trial.

Warren E. Burger:

Let me just add for the — my hypothetical question, supposing the trial of those cases with that evidence excluded for the purposes on this record, and other words no question about the use of the information to get the warrant, and your client took that stand and testified and was asked, do you have any other — possession of any other drugs except those found on your purse, and he said, no.

Under Harris against New York, could your statement be used to impeach him?

Robert S. Cohen:

Well I would say Your Honor that —

Warren E. Burger:

Not your view but what the view of Harris against New York.

Robert S. Cohen:

I would say that Harris was a pre-Miranda situation, so Harris would not be authority on point.

Warren E. Burger:

Harris, pre-Miranda?

Robert S. Cohen:

I believe that was a pre-Miranda interrogation Your Honor.

Warren E. Burger:

— pre-Miranda in terms of —

Robert S. Cohen:

Oregon v. Hass, I believe Your Honor was a post-Miranda.

Warren E. Burger:

Miranda was on the books for three or four years before Harris was decided.

Robert S. Cohen:

I am sorry Your Honor, I didn’t understand.

Warren E. Burger:

Miranda was on the books three or four years before Harris was decided.

Robert S. Cohen:

Yes, but I think that it took that time for the litigation to reach this court, I believe that was a pre-Miranda case, but the Oregon v. Hass situation was a post-Miranda.

I would Your Honor that the court has shown historically a concern for perjury.

In that situation, it may very well be yes, that under Harris and Hass that the evidence could be used for impeachment but that question is not before the court today Your Honor.

Finally respondent suggests that the nature of the adversary system and the important of the dignity and integrity of the individual require suppression of evidence obtained by questioning an individual who was called bouncing off the walls and called didn’t know what he was doing.

Warren E. Burger:

Even if you are voluntarily bouncing off the walls?

Robert S. Cohen:

I would say Your Honor please that if a person was voluntarily bouncing off the walls, the previous case here this morning may have some applicability.

He may be suffering some type of mental disease but this is not the case here Your Honor.

Robert S. Cohen:

On this case, the respondent was bouncing off the walls from a combination of drugs and alcohol, he was – it’s in the record that he was scratching himself incessantly and that he didn’t know what he was doing.

William H. Rehnquist:

Conduct beyond his own control.

Robert S. Cohen:

That’s correct.

Thus Chief Justice Warren discussing the privilege against self incrimination stated and if I may quote briefly, “the constitutional foundation underlying the privileges to respect the government, state or federal must accord to the dignity and integrity of its citizens to maintain” —

Warren E. Burger:

You can finish your sentence.

Robert S. Cohen:

Thank you Your Honor.

To maintain a fair state individual balance, to require the government to show that the entire load, to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel simple expedient of compelling it from his own mouth.

Thank you very much.

Warren E. Burger:

Thank you.

Do you have anything further Ms. Smith?

Barbara A. H. Smith:

Yes very briefly Your Honor.

I’d like to respond to a question of Justice Stevens, prior to the lunch break regarding this Sixth Amendment right to counsel a case.

I would suggest it under Kirby v. Illinois that no judicial proceedings had been initiated and the Sixth Amendment right does not apply, this is not a Brewer v. Williams case in any respect.

As to the allegation that there was an independent state ground for this decision, I would first like to point out to the court that on page 70 of the appendix, the defendant’s Assignment of Error read as follows.

Evidence was obtained as a violation of the defendant’s right under the Fourth, Fifth, Sixth Amendments of the constitution of the United States.

He did not assign its error any violation under the constitution of Massachusetts.

Furthermore in the two reference decisions in the White case Hass and Hall, there are references to federal cases, particularly Miranda versus Arizona, and Brown versus Illinois.

In none of the referenced cases, in those two decisions or in the reference cases, in those decisions, there is any discussion of the Massachusetts’s constitution of probabition against compelled testimony to take place.

There is simple no ambiguity in the basis for decision in this case.

John Paul Stevens:

I suppose that you prevail that goes back and it could then rest it on the state constitution, couldn’t they, and then reinstate their judgment.

Barbara A. H. Smith:

In the future, and in other case, they could rest it on state constitution but I think this case is before this court now on the basis of this decision —

John Paul Stevens:

I don’t know I say if you prevail here and this reverse and it goes back.

Can the Massachusetts’s Supreme Court reinstate their judgment on basis to their state constitution?

That’s what happened in Opperman, isn’t it?

Barbara A. H. Smith:

There is a possibility Your Honor.

John Paul Stevens:

It’s not a possibility.

Barbara A. H. Smith:

They could do that, they could do but they have given no indication that they are inclined to do so.

In fact in the only case in which the court has been answered to apply our constitution more strictly than this court in a Miranda related situation, they refused to say that our constitution required a different holding than this court reached in Harris versus New York.

Thank you very much.

Warren E. Burger:

Thank you counsel.

Warren E. Burger:

The case is submitted.