Miller v. United States

PETITIONER:Miller
RESPONDENT:United States
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 126
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 357 US 301 (1958)
ARGUED: Jan 28, 1958
DECIDED: Jun 23, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 28, 1958 in Miller v. United States

Earl Warren:

— William Miller, Petitioner, versus United States of America.

Mr. Harris.

De Long Harris:

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

This case presents an issue involving the breaking of a citizen’s door, the nighttime hours without a warrant and without notification of the purpose of seeking entry.

The fact behind that question as they arose in this case, briefly are as follows.

Back in March of 1955, about 1:35 in the morning, Federal Bureau of Narcotics, agent Wilson arrested a known narcotic addict who had given him some information of the payoffs named Reed.

Reed was arrested on a warrant and charged a violation of the narcotic laws on January 20th, 1955.

Reed told Mr. Wilson that he got his narcotics from the petitioner and from Bessie Byrd and he went into a little detail.

He said that he usually met a man named Shepherd, about 3 o’clock in the morning and that he purchased 100-capsule lots of narcotics from Shepherd, paying therefore, $100.

And that usually, he would wait for Shepherd to return with the narcotics, but on other occasions, he had accompanied Shepherd in a taxicab up to the 1300 block of Columbia Road, where Shepherd would get out of the cab and go into 1337 Columbia Road, at a place where an apartment was occupied by the petitioner, Miller, and by a codefendant in the case below, Bessie Byrd.

Mr. Wilson took Reed down to police headquarters, but he didn’t book him.

He didn’t charge him.

He didn’t incarcerate him, but rather took him to a street corner in the District of Columbia whereby, a prearrangement — they met with several District of Columbia police officers, two Virginia State police officers and a number of Federal Bureau of Narcotics agents.

It was planned and agreed as between the group that this man, Reed, would cooperate with agent Lewis in obtaining a purchase of drugs from the brought Shepherd.

And in connection with that plan, Lewis was given $100 in marked money and it was also understood that Reed would go along with Lewis and that there would come a time when he would give Reed some of the money to show Shepherd and to tell him that his partner would supply additional funds.

Now, the police officers and the Federal Bureau of Narcotics agents occupied two cars and these cars were equipped with radio so that they could commincate as between the two cars.

So Reed and Lewis, the training agent Lewis left in a taxicab and proceeded to the home of Shepherd.

Shepherd got out of the cab — Reed got out of the cab, went into the house, came back with Shepherd.

And it was later said that in the meanwhile, Reed had shown Shepherd $50 of the marked money as a sort of a bait or to show him that there was available cash.

Then Reed, Shepherd got back in the cab with Lewis and they proceeded to the home of Reed and it had also been agreed that Lewis was to make an attempt to put the money on the proposed defendant, Shepherd.

And that if he did that as a signal, Lewis and Reed was to enter the Vermont Avenue house, formerly the dwelling of Reed.

So, that happened.

Shepherd remained in the taxicab and of course he was followed by the two — followed the police officers and agents.

And the taxicab went in a great circle of route, on route picking up a soldier and two other passengers and taking them to their destination and ultimately coming to the 1300 block of Columbia Road, NW.

The cab double parked and Shepherd got out of the cab and went into the basement of 1337 which is an apartment dwelling.

Mr. Wilson, the Narcotic agent, followed him to the door, looked into the hallway and saw that Shepherd has disappeared.

Agent Wilson then went across the street where he observed the light go on, not in the apartment, but in a furnace room that was also in the basement.

And incidentally, in this basement, there were three entrances, one leading to the street, one leading to the furnace room and one leading to apartment No. 1, which was occupied by the petitioner and by Bessie Byrd.

Now, Wilson then got back into his car, and the two followed — the officers followed the taxicab now occupied by Shepherd for about three or four blocks and then in a rather dramatic passion, they forced the taxicab over, stopped it and the cab driver got out.

The dome light flashed on and Shepherd was observed to put a package under the front seat.

De Long Harris:

Shepherd was immediately arrested and he was then searched.

He was found not to have the marked money.

And then, the cab was searched and the package was found under the front seat containing 100 capsules of a suspected opium derivative and I believe they performed an immediate field test confirming that.

Shepherd was questioned about the package and he first denied any knowledge of it.

Then later, he said that he has been up to Columbia Road, but that he had done that at the behest of Reed and Lewis and that he had been told that if he looked behind the fire extinguisher in the hallway, he would find the narcotics.

The agents and officers then immediately proceeded to 1337 Columbia Road where police officer Wurms went upstairs to the first floor entrance and he proceeded down the hall to a doorway and down from stairs.

When he got to the bottom of the stairs, there was a door leading to the furnace room and to the basement hallway and this door was locked.

Also, Wurms used the skeleton key and affected an entry into the — the basement hallway.

In the meanwhile, Mr. Wilson had gone through the basement door, put it there to the door of apartment No. 1 and in effort to ascertain if he could hear any movements or signs of life inside, and he heard no such sound.

Wurms then joined Wilson at the door.

William O. Douglas:

Do you think he heard or he didn’t hear?

De Long Harris:

He heard no signs of life inside the apartment.

Now, when Wurms joined Wilson at the door, one or both of them knocked and they said they knocked very softly and in a very low voice said, “Police — Blue.

Police open up!”

And that was repeated twice.

A voice from the inside said, “Who’s there?”

And then, the door was partially opened and it was secured by an ordinary chain lock or chain latch.

Officer Wurms testified that — know if — wanted to know what they were doing there and to quote what was said by Miller as testified to by Wurms.

He said, “What do you all want?”

But there is nothing in the record to indicate that this question was ever answered.

And then Mr. Wurms put his hand inside the door, caught a hold of the chain and the door and forced the door open and in the process, broke off the chain from the door.

When they went inside, they said to Miller, “Sit down, you’re under arrest.”

And likewise told Bessie Byrd the same thing and said, “We are looking for our marked money.”

Bessie Byrd handed on a housecoat, “We are looking for our marked money.”

Now, Bessie Byrd handed on a housecoat and the pocket of that housecoat contains the money and it proves to contain $34 of the marked currency.

Then, a search ensued and at the end of about an hour and a half, the remaining $66 —

Hugo L. Black:

Did they give that voluntarily or how did they get the $34?

De Long Harris:

Well, I say it was not done voluntarily.

She had her hand in her coat pocket.

Officer Wurms asked her, “What do you have here?”

De Long Harris:

She said, “It’s only money.”

And according to the testimony as I recall, he said, “The money was then taken from her.”

Hugo L. Black:

Would you step forward to testify to last officer?

De Long Harris:

Officer Wurms.

Now —

Hugo L. Black:

There is no conflict on this?

De Long Harris:

There is no conflict.

There’s no contention that this money was given voluntarily by Bessie Byrd.

At the end of this hour and a half long search, some of the money was found between sheets on the bed and the rest of it in the hat box, so that the whole $100 of marked money was recovered.

They searched on the same room where the rest remained?

De Long Harris:

The record is not clear on that.

It appeared that this was an apartment consisting of a sort of hallway and a bedroom.

Now, when the door to apartment 1 opens up, you are in the bedroom, as I understand the record.

William J. Brennan, Jr.:

How long did the search go on this?

De Long Harris:

The search went on for one hour and a half.

Now, in our question —

William J. Brennan, Jr.:

(Inaudible) is the $66 from somewhere else?

De Long Harris:

The $66, part was found in a hatbox in the apartment and the rest was found in the bed between the sheets.

William J. Brennan, Jr.:

Where was the hatbox?

De Long Harris:

The record does not say it.

Now, it is this petitioner’s position that the rationale of Title 18, Section 3109 which incidentally only provides for search warrants, but says this, “The officer may break open any (Inaudible) or any door or window of the house, or any part of the house or anything there is to execute a search warrant, if after notice of his authority and purpose, he had has refused admittance or when necessary to liberate himself or first in aiding him in the execution of the warrant.”

That, of course, pertains to search warrants.

The Government however on pages 10 and page 23 of its brief, concedes that the entry here must be tested under the standard as enunciated in Section 3109.

So, I will not concern myself later to that particular point.

However, it is interesting to note that the original 3109 which was called Section 619 of Title 11 of the Espionage Act, was enacted at a time when Congress gave to the federal agents and to the Federal Government for the first time, a general power of search.

And incidentally, 3109 was taken almost verbatim from the New York law on this subject, but of course, since it only pertained to search warrants, it had nothing to do, of course, with arrest without a warrant.

Felix Frankfurter:

They don’t — do you say the Government — there was no search warrant and that’s the reason?

No doubt about that.

De Long Harris:

No doubt about that.

(Voice Overlap) —

Felix Frankfurter:

And yet, you say the Government rests on defenses on 3109, is that what you said?

De Long Harris:

The Government says that they agreed that the validity of the entry herein question, must be tested under the standard of 3109.

Felix Frankfurter:

You mean it doesn’t make a difference when you got a search warrant or not, is that it?

De Long Harris:

No, I — I don’t believe that’s the question that Justice Frankfurter —

Felix Frankfurter:

Well, I don’t — I don’t understand what it means to say that you have a provision of — that Congress provided, the power of search warrant maybe executed.

And yet, you indicate that you’re contesting the Government’s position that the standard of determining how you can search without a warrant is the same.

De Long Harris:

I’m not contesting that —

Felix Frankfurter:

I mean, you’re objecting to that.

De Long Harris:

I am not.

I am agreeing with them.

I’m saying that as a result of that concession, I don’t — my burden is made lighter.

I don’t have to argue that particular point.

I’m saying that the —

Felix Frankfurter:

But even if — even if this was a search warrant, this wouldn’t be valid, if you’re saying it.

De Long Harris:

Even with a search warrant, this entry would not be valid.

Felix Frankfurter:

Well, I don’t understand why you argue that.

Why we should say that the provision specifications by Congress and how a search warrant maybe executed apply when you haven’t got a search warrant?

I don’t understand that kind of an argument.

De Long Harris:

Well, we’re saying not that the — the law applies, but the rationale behind the particular statute and I’m about to come to the law in the District of Columbia as it applies in the District, pertaining directly to arrest without a warrant in a home.

Felix Frankfurter:

Well, go ahead and argue your way, but I don’t understand an argument that takes to determine whether behavior without a search warrant is legal on the theory that it was a search warrant.(Voice Overlap) —

De Long Harris:

No.

That is not my main theory.

Justice Frankfurter, we are saying that the law in the District of Columbia says that before you can arrest a citizen in his home, you must not and you must do two things.

You must notify him of the authority and notify him of your purpose.

Felix Frankfurter:

You’re now talking about the legality of arrest, is that it?

De Long Harris:

The arrest and the entry.

Yes.

Felix Frankfurter:

Very well, that’s a different story again.

You’re now considering whether this is an allowable search on the basis of a legal arrest and you’re not challenging the legality of the arrest.

De Long Harris:

That is correct.

Felix Frankfurter:

All right, I understand.

De Long Harris:

And we say that the arrest was illegal because the entry was illegal under the law in the District of Columbia.

Incidentally —

Was there are warrant for his —

De Long Harris:

There was no warrant.

No effort to make — to obtain a warrant and the Government argues that here was a situation where they had to act in a hurry, but of course, we disagree with that contention.

Felix Frankfurter:

May I — may I hold you up long enough to ask (Inaudible) you probably stated and I not heard it or attend to it.

Does the record show when the authorities first had reasonable ground or some ground for suspecting the present petitioner?

The record shed any light on that?

De Long Harris:

At 1:35 in the morning, that same morning, the narcotic addict, Reed, told Wilson that he had bought his narcotics from Shepherd and that Shepherd, in turn, got the narcotics from William Miller.

Felix Frankfurter:

And that was the first knowledge I had about the petition.

De Long Harris:

Insofar as the record is concerned.

Felix Frankfurter:

1:35 a.m.

De Long Harris:

1:35 (Voice Overlap) —

Felix Frankfurter:

And when was the transaction in controversy?

De Long Harris:

4 — 4 a.m.

Felix Frankfurter:

4 a.m.

So that as the matter of time, in this case, it isn’t like other cases that come become before this Court where the authorities had ample notice.

You’ve got to be able to get a search warrant, is that right?

Or don’t you concede that?

De Long Harris:

I do not concede that, because according —

Felix Frankfurter:

Time is pretty short here, between 1:35 in the morning and 4 something in — the same morning, is that right?

De Long Harris:

That’s correct.

Felix Frankfurter:

All right.

De Long Harris:

However, the authorities could have done this.

Shepherd, according to their plan, was about to bring some narcotics back to — the agent Lewis.

And there was no occasion really for immediately arresting Shepherd in this dramatic street arrest when they could’ve gotten a perfect case on him by allowing him to deliver the narcotics to Lewis.

And of course, the warrant could have been gotten until the next morning, that morning or so or weeks, thereafter.

Earl Warren:

Well, would you rule out the reasonableness of the authority to conclude that if they waited for the second — for the other things that you speak off, that the defendant took the prospective or the — the suspected people might elude the law.

Will you rule out that that’s a reasonable conduct on their part, not to wait for better, later opportunities?

De Long Harris:

Under the circumstances in this case, I would rule it out and I would say that it would’ve been a wide one.

Certainly, a more judicial conduct on the part of the officers to let there be some judicial magistrate or some intervening authority to be determined —

Felix Frankfurter:

Well, they might have been tipped off.

The suspects might have been tipped off by somebody and — and make way, make a way.

De Long Harris:

Well, all that happened, as they arrested Shepherd on the street.

They say that Shepherd’s arrest would — might have tipped off Miller.

The way they did it, that might have happened, but I’m saying Your Honor that — that need not have been.

They didn’t need to immediately arrest Shepherd.

Shepherd was going to bring the narcotics back to Lewis, back on Vermont Avenue, where Lewis was supposed to be at least waiting for him.

Felix Frankfurter:

I didn’t mean to foreclose the question of search, certainly not, but I want to ask you whether you think, the Court should lay down such nice judgment or such careful judgments upon the arresting officers as to lead us to say as a matter of law, they didn’t have to act at once.

They could’ve waited for the net to be strung later.

De Long Harris:

Well, let me say, Justice Frankfurter, that that is not the burden of my argument here.

We are saying that we don’t say that they had probable cause.

We say they did not have probable cause, but that is not the principal portion of our argument.

We are saying not only if they had probable cause, but if this apartment had a plate glass window and they had klieg lights and could’ve seen the transaction, they still have to knock on the door and let no one know who they were and why they were seeking entry to his house.

That is our argument and the — of course, the question of probable cause has been argued by the Government in point 1 of their brief.

They say that the officers had probable cause.

And therefore, they had a right to arrest Miller in his apartment.

Without conceding the point, but for the purposes of this argument, let us suppose that they did have probable cause, and that not only has probable cause, but they had knowledge.

We are saying that in the law, in the District of Columbia required the officers to give notice of their purpose to let him know the cause of their demands for entering.

Now, of course, there is no federal law treating of arrest without a warrant and searches of this particular sort.

So according to the — the Di Re decision of this Court, the local state law would apply.

Now, unfortunately for the petitioner, we have some very good and very clear law on this subject, the Accarino case in which there’s a very long and very scholarly discussion by Judge Prettyman, discusses all of the pertinent American authorities, all of the historical background, Hale, Byrnes, Blackstone and as far back as some of these cases.

And insofar as the District of Columbia is concerned, they say or Judge Prettyman said in the Accarino decision that “You cannot enter the citizen’s home without a warrant to arrest him, without first giving a cause of your demand for entry.”

Earl Warren:

The — the — I haven’t read the Accarino case, except the quotation from it in Chief Justice’s dissent, but there’s an — there’s an opening, qualifying phrase, “Unless the necessities of the moment required that the officer breakdown the door.”

What do you think of that?

De Long Harris:

Well — merely, the — the thing from Accarino, the whole quotation, because as I understand Accarino, it’s a twofold holding.

Accarino said that the arrest in Accarino was illegal for two reasons.

First of all, unless the necessities of the moment demand and in reasonable contemplation, the officers could not have secured a warrant, then the officer may not breakdown the citizen’s door to arrest him.

The second aspect of Accarino and this is the aspect that I am arguing here primarily, says that, “Given probable cause — in so many words, Judge Prettyman said that, “Given probable cause, you must first make known the cause of your demand for entry.”

De Long Harris:

And Judge Prettyman says that all of the authorities are in agreement in that particular respect.

Let me read from it.

Upon one topic, there appears to be no dispute in authorities.

Before an officer can break open a door to a home, he must make known the cause of his demands for entry.

There is no claim in the case at bar that the officers advised the suspect to the cause of their demand, before they broke down the door.

Upon that clear ground alone, the breaking of the door was unlawful.

The presence of the officers in the apartment was unlawful and so, the arrest was unlawful.

Now, that is the law in the District of Columbia.

Now, Accarino, is not an isolated decision, Accarino was again reiterated and reaffirmed in a case called Gatewood against United Sates, the citation for which is in my brief wherein the Government tries to distinguish Gatewood saying there was also a subterfuge view.

In the Gatewood case, the officers had a warrant, but as it turned out, it was a bench warrant that had already been executed.

So, the warrant was in fact, invalid.

Nevertheless, in that decision, they say that the principle of Accarino must apply and that because in that particular case without giving notice of their true purpose, they forced their way into the apartment of Gatewood, and therefore their entry was illegal and the arrest was illegal in the same fashion as — was to in Accarino.

Now —

Earl Warren:

(Voice Overlap) I don’t understand the difference between the — a warrant, the function of which had become exhausted by prior use and having no warrant at all.

Why should there be a difference?

De Long Harris:

There is no difference.

Gatewood — the holding in Gatewood was these officers were in fact entering without a warrant.

Earl Warren:

What I mean, what’s the deception if you got a warrant, there isn’t any (Voice Overlap) —

De Long Harris:

Oh, the deception?

Earl Warren:

Is that any worse than having no warrant at all?

De Long Harris:

No, the deception was they cried out, instead of saying, “Police!”

They said, “Western Union.”

And the man, Gatewood, partially opened his door in response to the cry of Western Union, so that would be subtefuge in the Gatewood case, and I really don’t think that is important at all.

I don’t think that it matters to our purpose in here now.

In another case —

Could I ask you a question?

Do you concede see that at this time under District of Columbia law, there was a right to arrest without a warrant for a crime not committed in the presence of the officers?

De Long Harris:

That is the law in the District of Columbia, but I’m saying here —

But I’m puzzled by — this is on — it maybe — should ask the District Attorney or the United States attorney?

De Long Harris:

You may arrest in the District of Columbia upon probable cause without a warrant.

De Long Harris:

All that we are saying is we don’t concede the probable cause.

The reason I’m raising the question is that the District of Columbia Code, as I read it, “Provides that ordinary police officers can only arrest without a warrant for crimes committed in their presence and that only the major and the superintendent of police are authorized to arrest without a warrant for a crime not committed in their presence.”

I’m puzzled by it, because the case, it seemed to be on the other way.

De Long Harris:

Well, that’s entitled for, I believe that Your Honor —

I thought maybe —

De Long Harris:

— maybe informed and I have read that —

— the United States attorney can clear up my property.

De Long Harris:

I have read that section and I read the adaptation in the — adaptations of the Code, but they say by inference that the major and superintendent might delegate his authority.

It’s somewhere on the adaptation, but —

But the adaptation says, for a probable inclusion of (Inaudible) and other offenses, see Sections 406, and you turn to those and I don’t get any answer.

De Long Harris:

406 does not answer the problem.

It doesn’t.

De Long Harris:

But I can confess, insofar as the printed law is concerned, there is nothing clear on it, but we have operated in the District of Columbia for — all through the years on the assumption that an officer can make an arrest for that one.

Felix Frankfurter:

Well, if there’s — there’s nothing unique about that is there in the criminal procedure of the country?

De Long Harris:

(Voice Overlap) —

Felix Frankfurter:

That an officer can arrest, although the crime is not committed in his presence to be as probable cause to believe that the crime has been committed and that the particular person is the comitant.

De Long Harris:

No, but —

Felix Frankfurter:

Nothing unique about that?

De Long Harris:

No question about that whatsoever, nothing whatsoever.

And we are saying —

Earl Warren:

Does that include — does that include the right to break in?

De Long Harris:

Of course not, Chief Justice.

We are — we are saying that’s our argument here.

There is no law authorizing anybody to break in to a man’s house without giving notice of his authority purpose, no law anywhere.

Now, some other states, Kentucky, one, New York, one, California, for another, have statutes pertaining to arrest, but containing the context similar to that contained in 3109 requiring — giving the — of notice of authority and purpose, but they used curiously enough the word “explain”.

The officer shall not break the door unless he explains his purpose.

And I think when you come to a man’s door and cry out, “Police!”

You are not explaining your purpose.

You are not telling why you are there.

You are not telling why you are asking, entering into the man’s house.

De Long Harris:

If these officers had been in the full red and blue uniform, Miller could’ve opened his door and he could’ve seen that they were police, but that didn’t give them any authority to break his door down unless they first told him why they wanted to come in.

Now, the Government argues that there was some knowledge on the part of Miller.

It seemed as though Wilson said that he, on a previous occasion, a previous narcotic arrest had seen Miller.

And had some contact with him, but they never had any conversation and there’s no reason to suppose that though Wilson knew Miller, that Miller knew Wilson and I don’t believe that you can impute knowledge for the suspect and as a result of the imputation of knowledge to the suspect, his offense would be primary and plain required duty of the officer to make such an announcement.

I don’t believe that you can do that and as Judge Edgerton says in the dissent here, even assuming — even if you assume that Miller did know Wilson, there was no reason why Wilson and Wurms should not answer, asked to them, why they wanted to come into this house.

Now —

Charles E. Whittaker:

You used the term, “knowledge”.

You said there were some showing here that Miller may have had knowledge, knowledge of what do you mean to?

De Long Harris:

Well, knowledge as to who Wilson was, not knowledge as to his purpose in entering the premises, but they say that Wilson had seen, know of before in a previous narcotic arrest and that therefore, Miller knew Wilson.

We don’t agree with that of course, but we say that even if Miller did know Wilson, it wouldn’t make a part to be different, because you cannot dispense with the obligation of the officers here in the District of Columbia as enunciated in the Accarino case or making that announcement.

And we say also that under the circumstances here, it appeared that the primary and almost sole purpose of the officers was to recover the $100, in marked currency.

And that as the consequence, the arrest was merely a pretext for the search, the officers, all through the record, they say when they first got in, “We are looking for our marked money.”

The marked money was really what they wanted and I don’t believe that they could’ve mean any thought of the case without the marked money and therefore, they were intent upon obtaining the marked money and incidentally, of course, arresting Miller.

What happened to Mrs. Byrd, she cried?

De Long Harris:

She was crying and in — at the trial, she, jointly with Miller, filed a motion to suppress this evidence which was heard and denied and she also appealed to the United States Circuit Court of Appeals to the District of Columbia, but the appeal — the result was a split court, Judge Edgerton dissenting in the conviction of Byrd was upheld.

And she’s not up here.

De Long Harris:

She did not feel good.

She did not file a petition for certiorari.

Felix Frankfurter:

You — your argument is (a) the arrest was illegal and therefore everything that follows is illegal, is that right?

De Long Harris:

That’s correct.

Felix Frankfurter:

Now, suppose the arrest was legal.

Do you then agree or concede, what I mean a confession, does it follow that on this record, the search was legal?

In short, as your whole case turn on the illegality of the arrest which renders the sequence of the illegality to which the search also illegal, or may you disagree with the — on the legality of the — the arrest and still trying to search him still.

De Long Harris:

I don’t know if we can have our case in either two, but we’re going to take both of those petitions.

Felix Frankfurter:

I don’t see why not, the fact of an arrest is legal doesn’t mean that the police can do anything they please.

De Long Harris:

As to the contrary, I —

Felix Frankfurter:

Well — well therefore, someone who said, the only way you can have a case is to beat it.

De Long Harris:

[Laughs] Thank you.

Earl Warren:

Mr. Sand.

Leonard B. Sand:

Chief Justice, may it please the Court.

Leonard B. Sand:

As this Court has — has noted what is the reasonable search and seizure is not to be determined by any fixed formula.

One has to look carefully to the facts and circumstances of each case.

And to this, with respect to the fact —

Felix Frankfurter:

Do you think that’s what our cases add up to — up to date?

Leonard B. Sand:

Well —

Felix Frankfurter:

I’m just asking you.

Leonard B. Sand:

I — I —

Felix Frankfurter:

It’s very a clear statement.

Leonard B. Sand:

It was a paraphrase — there was a paraphrase of — of language of this Court.

Felix Frankfurter:

What about the — the many language of this Court?

Leonard B. Sand:

I — I think that the — the areas or the crucial areas of difference between counsel for a petitioner and for the Government relate to the facts in this case rather than to the abstract principles of — of law which — which may apply and therefore, I’d like to outline those facts.

Tom C. Clark:

Did you make the opinion of these errors in page 5?

Leonard B. Sand:

Errors of omission, very serious error of omission particularly with respect to whether there is anything in the record concerning a notification by the officers as to their purpose in seeking entry.

I have reference to the testimony at page 29 where the officer testified.

He said — well, I — I’ll address myself directly to that — that incident although it occurred somewhat in — in the middle of the facts of this case, at page 29.

Now, this is the testimony at the trial.

Agent Wilson is relating what occurred when he sought entry into petitioner’s apartment.

This is after not being him sayung, “Police!

Open the door!”

And then about three quarters of the way down the page, the question is asked what happened then?

He said, “What do you all want?”

And he says “Police! You are under arrest.

We want in.”

William J. Brennan, Jr.:

What page are you reading from?

Leonard B. Sand:

I’m reading from page 99 of the record?

Earl Warren:

99?

That’s just (Voice Overlap) —

Leonard B. Sand:

99 — oh I — I’m sorry.

Charles E. Whittaker:

99, what?

Leonard B. Sand:

Page 99 of the — of the record.

Leonard B. Sand:

And that three quarters of the way down the page, he said, “What do you all want?”

And he says “Police!

You are under arrest.

We want in.”

He said that he was not going to let us in or something like that.

And so, officer Wurms took a hold at the door and pulled it open.

(Inaudible)

Leonard B. Sand:

Well, I understood the contention to be made that — that Blue had asked, “What do you want?”

And that there was no answer, I suggest that — that the — the testimony indicates — at least, a testimony at the trial indicates that there was an explicit statement by the officer that the purpose for which they sought entry into the apartment was to arrest the petitioner.

And so, we concede that before there can be an entry based on — on probable cause with the use of force that there must consist with the common law, the — an identification by the officers and an announcement of the purpose.

We think —

It was the Court of Appeals says they can’t make out in the record just what did happen.

Leonard B. Sand:

Well, I think — I think that it’s true that — that it’s not entirely clear.

Obviously, all these took place within a — a matter of seconds.

Agent Wilson and officer Wurms have had previous contact with Miller and with Byrd in connection with — with past narcotics violations.

William J. Brennan, Jr.:

Well, getting back, Mr. Sand, to this at 99 and I understand — that — adversary to say that whatever was that, there’s no evidence that it was heard.

Leonard B. Sand:

Well, to that — there’s — there is also no evidence, Mr. Justice Brennan that it — that it was not heard.

Obviously, Miller heard the knock on the door.

He said, “What do you want?”

So that — so that there was somebody at the other side either two of them —

William J. Brennan, Jr.:

Why, I gather, the announcement has to be brought home to the occupant, does it not?

Leonard B. Sand:

Well, yes.

We think that there has to be —

William J. Brennan, Jr.:

Now, this can’t be whispered and satisfied (Inaudible)

Leonard B. Sand:

We think there has to be a — a sufficient communication to the person against whose will, entry is sought so that he knows that — that persons who are law enforcement (Voice Overlap) —

William J. Brennan, Jr.:

Now, whose burden is it to prove that?

Leonard B. Sand:

I beg your pardon?

William J. Brennan, Jr.:

Whose burden is it to prove that?

Leonard B. Sand:

Well, I think the Government has the burden of showing that they were justified in seeking the entry and that the amount —

William J. Brennan, Jr.:

I’ll stick to the announcement.

William J. Brennan, Jr.:

Who has the burden of proving that the announcement was not only made but understood?

Leonard B. Sand:

Well, the defendant.

I — I would think that the Government can’t prove the negative.

The Government can’t prove that the defendant did not hear this.

There was a hearing on a motion to suppress in this case, if the defendant had full opportunity to testify in the absence of the jury and if he did not hear this, he — he could have —

Felix Frankfurter:

Only if it’s before the court in the absence of the jury as you just said.

Now, did the —

Leonard B. Sand:

No, Mr. Justice Frankfurter.

Felix Frankfurter:

But is it necessary that it should be?

Leonard B. Sand:

No, Mr. Justice Frankfurter.

Felix Frankfurter:

You mean, the preliminary question of the admissibility is not before the court alone?

Leonard B. Sand:

Oh, there was a hearing on the motion to suppress —

Felix Frankfurter:

That’s what I’m asking.

Leonard B. Sand:

— which was before the trial.

Felix Frankfurter:

Yes.

Well, now, all this and that — if the determination of that motion turned on whether the arrest was legal, all that evidence must’ve been before the trial judges bearing on the legality of the arrest, is that correct?

Leonard B. Sand:

Well, I think there was sufficient evidence before the judge on the hearing, on the motion to suppress.

Felix Frankfurter:

Now, what I want to know is whether this testimony of the police, what they said in counter testimony if there were, there had been counter testimony, all that is before the trial judge?

Leonard B. Sand:

This — the passage on page 99 as — as I pointed out, was at the trial.

Felix Frankfurter:

Was there any before — before the trial on the preliminary motion to suppress?

Leonard B. Sand:

Yes.

And that appeared —

Felix Frankfurter:

So it is on that, that the admissibility term.

You can’t make up for it by later testimony that came out of the trial, can you?

Leonard B. Sand:

But — yes, I — I think you can —

Felix Frankfurter:

Is that what you’re doing?

Leonard B. Sand:

— Mr. Justice Frankfurter.

Felix Frankfurter:

Is that what you’re doing?

Leonard B. Sand:

To the extent that I rely on the testimony at — at page 99 of the record, I’m doing that and in the Carroll case, this Court said that in passing upon a motion to suppress, when we look at — at all the testimony including the testimony adduced during the course of the trial, not merely the testimony which was adduced at the hearing.

And —

Felix Frankfurter:

Well —

Leonard B. Sand:

— on that strength of — of that ruling by this Court that I make reference to the testimony at page 99 —

Felix Frankfurter:

Well, I accept your —

Leonard B. Sand:

— of the record.

Felix Frankfurter:

— statement to what the colloquy showed, but it isn’t fresh in my mind, but it occurs to the — the basis of my inquiry is this, that if a motion to suppress — if the transaction out of which the search grew turned on the legality of the arrest, it would be important for me to know what the trial judge’s judgment was on the adequacy of the basis for the subsequent search and I should like to note, is there any light on that, whether there was any ruling by the trial judge on that legal question.

Leonard B. Sand:

Well, he denied the motion to suppress at the hearing.

Now, there was a hearing.

Felix Frankfurter:

(Voice Overlap) yes, but he made no comment.

As no — we have no (Voice Overlap) —

Leonard B. Sand:

Oh, yes, which we do.

He — he made what I suppose amounts to — to an oral opinion.

William J. Brennan, Jr.:

Now, where is that?

Leonard B. Sand:

And that would be at the conclusion of the — the motion to suppress and that would be on pages 31 and — and 32 of the — the record.

In — in essence, what he — what he — Judge Holtzoff says there is — is that the probable cause existed and on the basis of the existence of probable cause, he denied the motion to — to suppress.

The focus and I think the reason why this testimony at — at page 99 was not brought out as — as I shall show in the moment, at the — at the hearing and the motion to suppress was then the — the issue was focused on the question of — of probable cause.

No reference was — was made to the — to the statute which passed some light on the — on the obligations of the police officers.

I think — I think it — the fact that Miller and Wurms had previous contact — excuse me, that officer Wilson and Wurms had previous contact with Miller is significant in trying to evaluate just what it is that took place within the — within the few seconds when the store was opened and — and then an attempt was made to — to close it.

Felix Frankfurter:

Mr. Sand, would it bother you — would it bother you if you first stated what your legal propositions are with reference to which one is to judge the facts of the record?

Leonard B. Sand:

Yes, I — I would like to do that.

Felix Frankfurter:

Does that bother you?

Leonard B. Sand:

No.

I — as a matter of fact, I — I intended to begin in that way and — and did not.

I — I think there are three questions in this case, one is whether there was probable cause to make the arrest, which the counsel of petitioner does not concede, but does not press.

The — the other question relates to the mode of entry into the apartment.

Whether there was a sufficient notification of identity and purpose before the use of the minimal amount of force which was — which was used in this case, and the third relates to — to the search which was made — which the Government supports as being a search incident to a lawful arrest.

Those are the three questions in the case and as I — as petitioner does not strenuously press the question of — of probable cause, I — I will not belabor it.

I would, however, like to point out the fact which — which has not been — as yet called to this Court’s attention and that is that Shepherd, the — the runner for Miller, the man who — who was the contact with Reed, was the brother of the codefendant, Byrd, and the testimony is that he could generally be located at petitioner’s, mother’s house.

Now, I think that this is significant in determining the reasonableness of the conduct of the officers who sought to make the entry at — at 4:00 a.m., in the morning, without a warrant.

Because having arrested Reed and then Shepherd and in the light of this relationship between Shepherd and — and petitioner, there was every reason to believe that had they not immediately sought to arrest Miller, he would’ve learned by virtue of this relationship or perhaps the general jailhouse grapevine.

He would’ve learned that the narcotics officers had detected the operation of this — of this group.

Leonard B. Sand:

And so, when that fact is viewed in the light of the fact that the officers first learned to visit 1:35 in the morning and that everything which takes place in this — in this case took place within the interval between 1:35 and 4:00 a.m., in the morning, I think that it it’s apparent that the officers were acting not only reasonably, but under the present of circumstances.

There was — there was a necessity for them to affect the arrest immediately.

Could you straighten me out on this Court in the District of Columbia Code?

You smiled, so that will be (Voice Overlap) —

Leonard B. Sand:

I — I —

— is answer to it, but I don’t (Voice Overlap) —

Leonard B. Sand:

I smiled, Mr. Justice.

No.

On the contrary, I smiled because I — I had the —

The reason why (Voice Overlap) —

Leonard B. Sand:

— same difficulties with the District of Columbia Code that — that you have had.

And the answer, I think, is contained in the cases which are cited on — on page 13 of the Government’s brief.

They —

Leonard B. Sand:

That — that —

They don’t refer to it at all.

Leonard B. Sand:

The — in essence, the desolation of it is that the law of arrest in the District of Columbia is the common law — law of arrest.

You ignore the code then.

Leonard B. Sand:

The — the Court of Appeals of the District of Columbia is dealing with the matter of District of Columbia law, reaches the result that — that the (Voice Overlap) —

Felix Frankfurter:

But as I read the — the provisions to which Justice Harlan called my attention that the limitation to — to major or police and the other people, relates to felonies committed in a building.

Now, is this — does it appear from the record, this is committed in a building?

Leonard B. Sand:

Yes Mr. Justice.

Felix Frankfurter:

The conspiracy was committed in the building?

Leonard B. Sand:

Well, it — it appears that it was from the building that the petitioner made the sale of narcotics.

Felix Frankfurter:

Right.

But there’s a count on conspiracy.

Leonard B. Sand:

Well, obviously, some of the — there were overt acts committed in the building, but the District of Columbia Code is obviously anachronistic in — in the Court of Appeals with the District of Columbia.

Felix Frankfurter:

Well, that maybe one reason.

And that a straight provision like that, making a difference between a crime committed in a building or on a wall, or in a ship, but leave at large a conspiracy which isn’t committed in any of these things, but in men’s minds floating around.

I can see that —

Leonard B. Sand:

No.

Felix Frankfurter:

— there’s no difficulty about judges from the — having ruled the way they have.

Leonard B. Sand:

I think the fact that — that what took place — took place in the building is — is of a peculiar significance here, because this is not the sort of case, where agents having cause to arrest a defendant, trail them and wait until he gets into his apartment.

And I think when the facts are of that nature, then they called to close scrutiny as to whether the arrest was a subterfuge for a search, but here —

Felix Frankfurter:

But the opposite is — that the complementary importance is also true, namely, if a code provision restricts the matter in which you make an arrest in a building on a theory that a building is every man’s castle et cetera, then you want to be very scrupulous in enforcing the limitations.

So, it works both ways.

Leonard B. Sand:

Well, I — I think I was addressing myself to — to the different point and that is to the reasonableness of the search, because I think what’s significant here is not merely that there was probable cause to arrest petitioner and the fact that that arrest had to be made promptly.

But there was probable cause to arrest him in the apartment which is the — the only place where a petitioner could be found immediately after that probable cause arose.

And the place from which petitioner had in fact committed the crime.

So, I think, there was no reasonable suggestion in the facts in this case that the arrest was — was a pretext for the search.

And in fact, it — it would — the petitioner was arrested and the only place he could’ve been — been arrested.

So, that I — I think there was probable cause to arrest him.

It was a — a necessity to arrest him immediately.

There was probable cause to arrest them in the apartment and from the facts which the agents knew there was probable cause to believe that the marked money was in the — in the apartment and that there might very well be additional narcotics in the apartment.

Felix Frankfurter:

But it doesn’t follow from that.

That’s the third theory discussed, it doesn’t follow from that because there is a need of constituting arrest that there’s likeness at large, or — or leave at large to search everything in sight, because the police can hold their men, prevent disposition of the things to be searched long enough to get a search warrant.

Leonard B. Sand:

Well, I — I think it — it is true that that does not necessarily follow.

I attempted to — to deal with the facts chronologically because frequently, the Government is accused in search and seizure case of attempting to justify the arrest or the — or the entry on the basis of what the search uncovers.

Therefore, I’d like to deal with the situation as it confronted the officers at the various times they took the steps they did.

And we — we come then, I think, to the point at which the officers are outside the door of petitioner’s apartment, at 4:00 a.m., in the morning, having probable cause to believe the things I’ve — I’ve just stated and the necessity to — to act promptly.

Earl Warren:

Would you mind — would you discussing for a moment that portion of the — of the action of the police where they went into a portion of this building with a — with a passkey?

Leonard B. Sand:

Yes.

Earl Warren:

That — that might have some bearing to this.

Leonard B. Sand:

Yes.

That there are — this requires a brief description of the physical properties of this building and — and is fairly typical with — with — in New York we call Brownstone buildings, I don’t know what the term is, general.

There are two — two ways by which you can gain access to the basement apartment.

One is through an open staircase, which leads directly down to the basement and that is the roof which was taken by agent Wilson and (Inaudible) other of the officers there.

There is a second way by which you can gain access to that basement and that is through the first floor at the level above the basement apartment and that is the roof which one of the officers, officer Wurms took, and he went and he opened a doorway using a skeleton key which lead only to a stairway and that stairway went down into the furnace room and he went to the furnace room to the door of the furnace room, at which point, he came out in the hallway, the very same hallway he would’ve been had he come down the open staircase from — from the outside, the same room which was taken by the other — the other officers.

The record isn’t explicit as to why he took this route, but there are some reasons in the record to believe that this was to prevent any possible escape through — through a backdoor, had there been a backdoor.

In other words, at the time entry was made into petitioner’s apartment, officer Wurms was in exactly the same position as with — with the other officers who — who came down the — the front stairs.

And so, in relation to the petitioner, the fact that he took this — this ultimate route, the Government feels is — is without significance.

Leonard B. Sand:

And so — and so all the officers are standing outside the door to petitioner’s apartment (Voice Overlap) —

Earl Warren:

You don’t concern that a breaking in, when he used that — that skeleton key in order to — in order to search that place or to do whatever he is going to do in there?

Leonard B. Sand:

Well — well, I don’t consider it a — a breaking in or a trespass with relation to petitioner.

This was an entry into a common stairway and — and into a furnace room.

After he went through the — the common stairway and to the furnace room, he was then in the hallway and he was in exactly the same position as — as where the — where the other officers.

Earl Warren:

Well, didn’t I understand from Mr. Harris that — that there had been a light down there in the furnace room and that was the reason perhaps that they used the skeleton key to —

Leonard B. Sand:

Well —

Earl Warren:

— to investigate the activities down there?

Leonard B. Sand:

When — when Agent Wilson first observed Shepherd go down the basement —

Earl Warren:

Yes.

Leonard B. Sand:

— he — he followed down — he followed down the stairs and looked in the hallway and there are two —

Earl Warren:

Who did?

Leonard B. Sand:

Agent Wilson is — is following Shepherd, the runner, who has gone down —

Earl Warren:

Yes.

Leonard B. Sand:

— in the basement and there are — there are three doors as — as counsel of the petitioner stated.

One is the door at which — which just leads to the entrance and that was open.

There were two doors, one of which leads to the furnace room and one of which leads to petitioner’s apartment.

Nobody was in the hallway.

The inference being inescapable that Shepherd went either into the furnace room or into petitioner’s apartment.

Agent Wilson then ascended the stairs and crossed the street.

He then saw a light go on for the first time in the furnace room.

It went off and then some moments later, Shepard came out.

He had a taxicab waiting all this time.

I think the entrance that — that Shepard had —

Earl Warren:

They were searching the place right then, weren’t they, when he went — when he went in with that passkey into that room that had — had been occupied just a few moments before by — by one of the participants in this crime.

Leonard B. Sand:

There is no evidence, Mr. Chief Justice, that any search was made.

Earl Warren:

What did he go there for?

Leonard B. Sand:

Well, he went there, I think, and the — and the record is not — not too clear on this.

I think he went to preclude the possibility that Miller would escape through some — through some backdoor, some other exit.

The — the officer is not — not being in — familiar with — with the premises.

Leonard B. Sand:

Not having — not having previously searched the premises.

I think the fact that there is this interval between the — between the time that Shepherd goes down the stairs and the — and the time the light goes on in the furnace room is significant because I think in that interval, it’s clear that there was nobody in the furnace room.

And so, petitioner — and so, Shepard must have gone into petitioner’s apartment.

I think it’s a fact which fortified the existence of a — a probable cause.

And I think for purposes of completion, I — I — completeness I should state that — that they were subsequently found in the furnace room, 381 capsules of heroin at the conclusion of the trial Judge Youngdahl, dismissed the counts that were predicated on that, because he thought that the Government had not sufficiently proved possession of the — of the — possession control of the furnace room by — by petitioner and — and I — I think accepting that, it cannot be said that the entry into the furnace room which was a common area was a search affected as the result of — of an illegal entry.

This — this case is — is different from the McDonald case, where without the existence of probable cause, law enforcement agents entered an occupied bedroom apartment.

I — I think the facts are — are entirely different.

With — with respect to the means by which the officers, all of the officers, including officer Wurms, who — who came down from the furnace room gained access to petitioner’s apartment.

The testimony that appears at — at page 27 of the record is that after the officers said, “Blue, police!”

He, meaning Miller, opened the door slightly.

It was on a chain.

He took one look at me and tried to slam the door at which time I grabbed the door and opened it.

“Did you know this person, Blue, who opened the door?”

“Yes.”

“How did you know him?”

“Previous knowledge, I have seen him before.”

The majority of the — of the Court of Appeals reading the — the record and there are other passages in the record which are — which are consistent with — with that, said that upon the sum total of what must have flashed through his, Miller’s mind, that he recognized the officers instantly as the narcotic squad may fairly may inferred.

And — and we think, if the Court please, that the record does — does support that inference.

Earl Warren:

They support what inference?

Leonard B. Sand:

The inference that — that Miller having been told, “Police.”

Having them told that the testimony as — as the trial indicates, “You are under arrest.

We want in.”

When he opened the door and he saw the members of the narcotics squad with whom he had previous contact before him.

They were sufficiently communicated to him, the fact that these people who were outside his door, the law enforcement officials who sought entry into his apartment for purposes of arresting him.

Earl Warren:

Where does this — where does this appear in the record?

What opportunity Miller had to know that these men were police officers through activities that he had — or transactions he had with them?

Leonard B. Sand:

Well, the testimony — the — the passage which I — which I have just read, of course, is testimony by the officer who — who sought entry that he had — had previous knowledge with — in connection with the narcotics violation on the part of Miller.

I — I think it appears at page 27 of the — of the record.

Earl Warren:

Yes, but I — I thought at one place here, that you pointed out to us on page 31, where counsel for petitioner said to one of the officers, “Now, up — up until that time officer, did you have any reason to believe that the defendant, Miller, had done anything upon which you could justify and secure warrant for his arrest?”

And the Court said, “I’m going to exclude that.”

Leonard B. Sand:

Well, the — the basis for the Court’s exclusion was that — that — he excluded the question because of the — the premise in it that there was a necessity to — to obtain a — a warrant and he excluded the question because probable cause existing.

There was as — as the rule of no necessity to obtain the warrant.

Earl Warren:

Well, that was — that was the Court’s conclusion, but if — if you’re going to rely upon the fact that Miller had contact with these officers to a point that he knew who they were and that they were after him for all violations in connection with narcotics, why shouldn’t he have been enable to — to ask that question of the officer —

Leonard B. Sand:

Well —

Earl Warren:

— whether they had any reason to believe that the defendant Miller had done anything up to this time?

Leonard B. Sand:

Oh, well, that they were — that the other testimony indicates that — that defense counsel were afforded the opportunity — was afforded the opportunity to do that.

There was no restriction of the latitude apart from this question which was improper as to form.

There was no restriction of the latitude of the — of defense counsel at the — at the hearing and there was — there was inquiry in the cross-examination of Wilson as to the extent of his previous contacts with Miller and I think that this one — one objection is properly sustained because the question was — was improper as to form.

I — I don’t know that the defense counsel, the counsel for petitioner contending that they were unduly restricted at the — the hearing on the — on the motion to suppress.

Also, at page — at page 16 of the — of the record, if — if the Court please, or officer — another officer is accounting the — the same events and he is saying that he said in low voice, “Police.”

And the door was opened slowly.

“Who is the man who looked around the door?”

“William Miller.”

“Was he known to you?”

“Is that the same William Miller that you have previously known in connection with the narcotics case?”

“Yes, sir.”

Felix Frankfurter:

Well does that — does that prove, the fact that he had known Miller doesn’t prove that Miller knew him, but he knew —

Leonard B. Sand:

Well —

Felix Frankfurter:

— about Miller, doesn’t prove that he — Miller knew about him.

Leonard B. Sand:

No, but it’s — it creates — it — there is a — an inference which can be drawn and if, in fact, Miller did not know him, this was without a jury that he had full opportunity to state that to be the case.

Felix Frankfurter:

Well, I — well, go on, I don’t follow.

The narcotics people know about a lot of people who don’t know them.

Indeed, I should take a look, but that’s one of their chief jobs to know about people who don’t know them.

Leonard B. Sand:

Well, I — I think that — that the testimony, he took one look at me and tried to slam the door, supports that inference.

I think almost —

Earl Warren:

He had said it was police, didn’t he?

That’s the reason he slammed the door, wasn’t it?

Leonard B. Sand:

Well, the police — when — when he said (Voice Overlap) —

Earl Warren:

Now, you pointed out — you pointed out to us, two instance in the — instances here where all was said was — as it appears on page 16.

“Will you tell us what happened when you went down into the premise — premises there?”

Earl Warren:

Answer, “Officer Williams knocked on the door and a voice from inside said, who is there?” Officer Wurms repeated the name, “Blue”, called “Blue.”

Then he said in a very low voice “Police.”

Now, another phrase you pointed out to us, one of the officers testified to exactly the — the same thing.

I forgotten what page it was, 27, 28 (Voice Overlap) —

Leonard B. Sand:

Page 27.

Earl Warren:

Oh, yes.

Now, the — the officer testified.

“At that time, I knocked on the door and a — and a voice inside asked, “Who was there?”

And I said “Blue, police!”

And he said, “Who?”

I said “Blue, police.”

He opened the door slightly.

It was on a chain.

He took one look at me and tried to slam the door at which time I grabbed the door and opened it.”

Now, he didn’t say anything in either of those places about — about saying, “You’re under arrest.”

Leonard B. Sand:

That’s — that’s correct, Mr. Chief Justice.

That testimony —

Earl Warren:

Now that’s when they direct examination, isn’t it?

Leonard B. Sand:

Well, but with — with respect to that, when the testimony at the trial, I — I think it what occurred that it’s a fair reading of the entire hearing on the motion to suppress, excerpts from which Your Honor had just had reference to.

That the primary attack was based on the question of probable cause, and I think — I think that the focus was on that question.

And I think it’s significant that when their testimony at — came out, at — at greater detail of the trial, as appears at — at 99 of the record, “Police!

You are under arrest.

We want in.”

That no attempt was made by counsel for petitioner to — to cross-examine with respect to — to any inconsistency and as I say under the Carroll case, this Court has said that in determining the propriety of the ruling and a motion to suppress, one may — one may look at — at all the testimony including that adduced at the trial.

We’re dealing here with a — with a question of — of fact.

What, in fact, occurred within the few split seconds when — when the door was opened and closed?

We think that where an entry by means of force, such force, even the minimal force which was used here, in preventing the door from being slammed in the face of the officers, there must be a notification of — of identity and — and purpose.

But the law does not require police officers to — to elaborate on the obvious — or — or to — to make speeches while — while in the press of circumstances, such as this.

You have to look at the totality of circumstances and — and not require an elaborate statement of the obvious and — and this is what the cases hold.

The — the statute which is involved here is a — is a fairly common statute.

Leonard B. Sand:

The states have it and they have said that — that what is necessary is — is that they are not required, the — a statement of the obvious, an early Connecticut case says that it would be a palpable perversion of the rule to permit the benefit of it to — to accrue to somebody who obviously knew of what —

Felix Frankfurter:

Leave an important consideration is that no needless, no superfluous opportunity be left to suspects, to put away with evidence.

Leonard B. Sand:

I — I think that is correct.

I think one of the considerations is that.

And here of course, we’re dealing with narcotics and marked money and as — as up to the records in other cases indicated, it’s — it is very frequent that when narcotics violators suspected they’re about to be apprehended, they can quickly destroy the — the narcotics and that is the case discussed by the Court of Appeals that indicates that a frequent means is merely to flush the narcotics and the money down in the toilet.

And of course that could’ve — could’ve happened here.

Earl Warren:

Is there any responsibility on the police in such circumstances to state what the arrest is for?

Leonard B. Sand:

I think — I think not, Mr. Chief Justice.

Certainly not stated at — at that very moment, while the door is being slammed, I think that after they were in, had there been a — a question as to why the — the petitioner was being held, then he would’ve been entitled to know what — what the offense was.

Of course, what — I think —

Earl Warren:

Well, did they inform him at all?

Did they inform him at all here that they intended to arrest him for narcotics?

Leonard B. Sand:

Well, there was no explicit statement to that effect prior to the entry.

Once the entry was made, what — what then occurred is that immediately, both the petitioner and the codefendant, Byrd, were placed under arrest.

Earl Warren:

But I mean, before they broke in.

Leonard B. Sand:

Well, no, there was not.

And — and Mr. Chief Justice, I don’t think that the law should require police officers who have to ask —

Earl Warren:

Are there no decisions on that point?

Leonard B. Sand:

Well, there are decisions as to what must be stated prior to entry on the statutes of this sort and some of them are — are cited at page 27 of the Government’s brief.

And I’d like to refer briefly to one of those cases which is a decision by — by Judge Rosenberry in Wisconsin, the case is Hiller against State and —

Earl Warren:

Was that a — a state case?

Leonard B. Sand:

That’s a state case, but — but the requirement —

Earl Warren:

Are there no — are there no federal cases?

Leonard B. Sand:

I think there was no federal cases that — that deal with facts of the sort that we have here, there is — there is the Accarino and the Gatewood cases, but I think there, there was no probable cause, that there was subterfuge.

I — I think — I think the answer to that is — is no, but —

Felix Frankfurter:

But your — your implication is that there is no federal law, that there is no national federal law on what is a valid arrest and that therefore if you look to the local law, to the state law —

Leonard B. Sand:

Yes.

Felix Frankfurter:

(Voice Overlap) termination is that right?

Leonard B. Sand:

And — and we’re willing to —

Felix Frankfurter:

Is that right?

Leonard B. Sand:

Yes.

And we’re willing to accept the — the Accarino case, on the facts of the Accarino case, particularly the passage which appears at — at page 26 of the Government’s brief to the effect that before doors are broken, there must be a necessity for so doing and the notice of the authority and purpose to make the arrest must be given and a demand in the refusal — refusal of admission must be made.

Unless this is already understood or the peril would be increased — now obviously, if you look through a screen door and you see that the — that the man you seek to arrest is standing there loading a shotgun, you — you move quickly.

You move quickly in — or — or your life is in jeopardy.

The rationale of the rule, I think, is to minimize violence, to — to inform the defendant whether he — he has the grounds to resist an unlawful arrest and to minimize violence.

And I think that what the agents did here in preventing the door from being slammed and in — in gaining access the way they did, was a — a method and a mode of entry reasonably calculated to — to minimize violence.

I think there has been a — there was here, a compliance with the requirement that they’d be communicated notice of purpose and authority.

In the Hiller case, the — it was liquor case that the — a woman in the house apparently saw the officers and came and — and put a hook on the screen door and proceeded to dump the — the bootleg — bootleg liquor, and Judge Rosenburg said — Judge Rosenberry, excuse me, said, “The officers must act on the situation that appears to him and when those in possession of the premises to be searched give no opportunity for a formal statement, that there is no ceremony required.”

And I think that that — that is this case.

Immediately, after gaining access to the apartment, both the defendant and codefendant were — were placed under arrest and Mr. Justice Douglas had some question as to the means by which the — the Government acquired possession of the $34 which was on the person of the defendant and the testimony to that effect appears at pages 27 and 28 of the record.

They entered the apartment.

They said, “Bessie, you are under arrest.”

She stood up, her pocket was bulging.

She stuffed her hand in when she was asked what the bulge was.

She stuck her hand and said, “Nothing, but money.”

She stuck her hand in into the pocket and took the money out.

And took the money out, “Yes, sir.”

“What did you do then?”

“I took the money from her and handed it over to Agent Wilson.

Thereafter, the money is checked against the list of the — the marked money and it is found that $34 of that money was the money which was used to purchase the narcotics.

I think no one questions that in making a lawful arrest, there is the right to search the person of the defendant.

The bulge in the pocket could just as easily have been — been a gun or a knife, a weapon to protect themselves.

The officers have to search the person arrested.

It is thereafter, after the arrest and after the discovery of the $34 on the person who (Inaudible) that the search is made, the search which uncovers various evidences of — of engaging in the narcotics traffic in — in that room on which discloses the 381 capsules of heroin in furnace room as to which the counts were dismissed.

In urging the search —

Felix Frankfurter:

What is the — what was the geographic relation of the furnace room to the room in which they were —

Leonard B. Sand:

They were — they were adjacent rooms in the — in this —

Felix Frankfurter:

Open — open connection?

Leonard B. Sand:

No, there was a door.

Felix Frankfurter:

And you had to go through the door into the next room?

Leonard B. Sand:

You had to go from petitioner’s apartment to the common hallway to the furnace room.

In stating that the search here, which uncovered the balance of the $100, was incident to a lawful arrest, we emphasize the specificity of the search, that this was not a general rummaging for a private paper.

This was a search designed to locate narcotics which the officers that had reason to believe might — might be on the premises because a sale of some narcotics had just been made from those premises.

Felix Frankfurter:

You say it was not — why do you say it was not a private —

Leonard B. Sand:

The search was — was from the Government’s marked fund.

Felix Frankfurter:

Yes, but why did you say it was not in a — what did you about private (Voice Overlap) —

Leonard B. Sand:

Well, I — I said it — it was not a general rummaging through — through the personal effects.

It was not a fishing expedition.

The officers knew what they were looking for.

In fact, the testimony were stated what they were looking for and the nature —

Felix Frankfurter:

Which makes it — as to my mind, it makes it easier to get a search warrant.

Leonard B. Sand:

Well, the question then would be whether having — having arrested the — the person, having uncovered 34 of the dollars, knowing that the balance of the money is on the — is on the premises and the — the money is the Government’s marked funds, which the Government is seeking to recapture.

Whether then you would — you would require a cessation and the procurement of a — of a search warrant.

I think — I think no case imposes such a restriction upon the Government.

Felix Frankfurter:

Would the police have power either by explicit statute or by implication of their authority to padlock the place?

But they — they took these people away right away, to the police station?

Leonard B. Sand:

These people were taken for all that it appears I — I don’t know (Voice Overlap) —

Felix Frankfurter:

They — they padlocked the place, if they had a search warrant?

Leonard B. Sand:

I suppose — I have no reason to doubt that the — an officer could’ve been left at the premises.

They left the premises from 4 a.m., in the morning, until such time as — as the warrant could’ve been procured.

Felix Frankfurter:

(Voice Overlap) —

Leonard B. Sand:

I think what — what’ve been —

Felix Frankfurter:

They’re not keen for search warrants.

They’re keen for non-search warrants.

That’s the real truth of the matter about police —

Leonard B. Sand:

I think that this is — is not a case, Mr. Justice Frankfurter.

I think this is not a case which bears that out, but yes —

Felix Frankfurter:

I didn’t says that — it says the — this is the only case I hold from under my eyes since I’ve been here.

Leonard B. Sand:

I — I’m — of course it’s just one thing but I think that the conduct of — of the officers in this case is not susceptible to the — to any inference that — that the search was a pretext or that there was abuse of inference.

Felix Frankfurter:

I made the remotest suggestion.

Felix Frankfurter:

It just doesn’t manifest disinterested or — or appropriate zeal on the part of the law enforcing authorities.

My question has behind it, some other thoughts, namely, the restricted procedures under which they should operate.

Leonard B. Sand:

Well, it’s — it’s the Government’s position that — that on the totality of circumstances in this case that the officers acted reasonably and in accordance with the — the principles which have been laid down.

Felix Frankfurter:

Meaning by that, you don’t feel angry that they did something awful?

They really enforced the law which has behind it in an important public interest and you ought to be very flustered and fastidious about seeing how they do it.

That’s what it gets down to.

Leonard B. Sand:

Well, I — I think it gets down to that.

More than that, I think it gets down to law enforcement officials enforcing the law, pursuant to the law.

Felix Frankfurter:

Well, I know it, but I’m suggesting they could very be left, officer-in-charge without a search warrant, 9 o’clock in the morning or 8 o’clock with your information that you ever is (Inaudible) are available and then search the place thoroughly on the very good cause they had here for searching.

Leonard B. Sand:

It — it would have been possible for them to do that.

It would not have been unreasonable for them to do that.

I think it was not unreasonable for them to do what that they did here.

Felix Frankfurter:

That depends on what this Court will decide in the case.

Leonard B. Sand:

I — I assume that’s — that’s why we’re — we’re here, Mr. Justice Frankfurter.

But, as I say, in view of the — the knowledge that the balance of the — of the money was on the premises, the fact that what was sought to the Government’s marked funds and all the circumstances at this case, the limited specific search which was made, I think under all of the majority opinions of this Court, would be sustained.

Felix Frankfurter:

Could you — could you in connection with the questions I’ve asked you and I’m not unmindful of the problems that confront the police.

I hope I’m not.

I’m sure I’m not.

Could you tell me what disadvantages to the effective enforcement of the law would be an order of the chief of police, if that’s his name, or a ruling by this Court that if they have the means of protecting the potential evidence that they should not search outside of the person and immediate things that I sought of an extension of the person, what should hold the situation by appropriate means until they do get a search warrant.

Please tell me what embarrassment to a — a civilized mode of law enforcement is involved if that procedure became conventional?

Leonard B. Sand:

Well, I think — I think that in — in certain circumstances, there would be no embarrassment.

I think that it would depend on — on all those circumstances of the case.

I think that when an officer and on the assumption that — that the physical premises could remain intact.

I think that — that the cases have — have held that where an arrest is made, there is the authority to search not — not only the person (Inaudible) the defendant, but those things which are in his possession and control.

And this Court has — has sustained that authority in — in many cases.

Felix Frankfurter:

Well, this — the — the decisions of this Court as you very well know, do not constitute a straight line on this subject, does it, maybe an undulating line, but not a straight line?

Leonard B. Sand:

Well, I think there’s no decision of — of this Court which denies the authority to make a search of the sort that was made in this case.

Felix Frankfurter:

Maybe so.

I — I come from Missouri still, though that’s where my brother would’ve become.

Leonard B. Sand:

Well, certainly — certainly, we have been shown no such authority in this case.

Earl Warren:

The record shows that — that they searched for an hour and a half?

Leonard B. Sand:

The record shows that there was a search for an hour and a half.

Earl Warren:

Quite extensive search isn’t it?

Leonard B. Sand:

It was an extensive search, Mr. Chief Justice, because the marked money, the balance of which was in fact on the premises, as the agents knew it today, was concealed in the bed sheets.

Had — if there would’ve been a — the search would have lasted two minutes, had Miller said, “Yes, it’s there.”

I — I think that — that it’s a — one gives credit to the — to the ingenuity of narcotics violators if the criterion becomes the amount of time it takes to — to uncover what is known to be on the premises.

You see, here they know there’s $100 in the premises.

They go in $34.

Roughly, a third, this was on the person of — of one of the defendants.

They know that the balance of that money has to be on — on those — on the premises.

And — and so, they — they made the search limited — limited to — to the uncovery of the fountain of money and — and any additional narcotics and they were found on the premises (Voice Overlap) —

Felix Frankfurter:

Mr. Sand, that’s my trouble with this problem.

During the prohibition days, one talked about the ingenuity of prohibition violated, narcotic violated are in — are astute.

Petitioner’s literature is also the — and they’re also astute people.

That’s the trouble with this business of being over impressed by the needs of — of quick (Inaudible) and carelessness, casualness and often disordered and that’s the — the carrying out of this problem.

Leonard B. Sand:

Well, my reference to the ingenuity was only in — in the context of how long it took to — to uncover the money.

We’re dealing here with the case in which — which by hypothesis, if we reach this question.

The officers are lawfully on the premises, have made a lawful arrest, have lawfully uncovered one-third of the marked money and know that the balances on the premises and — and I think it is not unreasonable to say that — that such a search should be sustained by — by this Court.

Felix Frankfurter:

I don’t quarrel with the way in which you pressed the — the feasibility or desirability of this kind of conduct, that when which you pressed the position of the police and despite of quarrel, either with your duty to do so or would there be, my difficulty is why else.

Leonard B. Sand:

Well, I — I think that if — I think, Mr. Justice Frankfurter, that if there is a case even under — under the view which — which you’ve expressed in the dissenting opinions in — in Harris and in Rabinowitz, if there is a case in which even under — under the view which you have expressed, where a search will be permitted beyond the — the physical person of the defendant, this is such a case.

Earl Warren:

During this hour and a half, did they search the furnace room?

Leonard B. Sand:

There was a search that was made at the furnace room which uncovered considerable narcotics.

Earl Warren:

Yes.

Now, was that in the possession or the immediate possession of the — of the defendants?

I thought you said that you had to go out of his apartment, go across the common hall, then go down through a passkey and to another — into another room in order to get to the furnace room.

Leonard B. Sand:

At — at the conclusion of the trial, Judge Youngdahl dismissed the counts with — in —

Earl Warren:

I know.

Leonard B. Sand:

— respect to the narcotic confession.

Earl Warren:

I know.

Leonard B. Sand:

So, that’s — that’s not in the case.

Earl Warren:

Well, don’t you think it’s into the — if we’re going to determine whether the search was reasonable or not.

Suppose they went through the whole — whole building, through every apartment in the building and searching for something in connection with this and the judge said, “Well, we’ll throw out the — we’ll throw out the counts that — that have to do with the rest of the building.”

Still, wouldn’t that bear upon the reasonableness of this particular search?

Leonard B. Sand:

It — it might in the given case.

In this —

Earl Warren:

How about this one?

Leonard B. Sand:

— in this case, the motion to suppress was limited to the $100, which was found in the apartment and counsel for the defendant explicitly stated in an answer to a question from the Court at the motion to suppress, that he was — his motion was limited to the $100, found in the apartment and that he made no motion with respect to the narcotics found in the furnace room.

He was, of course, disclaiming any — any ownership or interest in those narcotics.

Earl Warren:

Well, I suppose, they were searching in the furnace room for the $100 just as much as they were narcotics, weren’t they?

Leonard B. Sand:

Well, I — I’m not sure that — that the record is — is clear, but — but I will assume that —

Earl Warren:

Well, probably you’re presuming so many things (Voice Overlap) —

Leonard B. Sand:

I — I would presume that.

Yes, I would —

Earl Warren:

Yes.

Leonard B. Sand:

— Mr. Chief Justice.

I think that — that the — even though in fact, Judge Youngdahl dismissed the counts in the furnace room and there’s a colloquy, before he does that which he indicates that — that he felt that it — it complicated what was a fairly simple — simple case as — as he saw it that the — that the counts with respect to the furnace room inject the complications into the case and — and because there were doubts as to possession and control and — and he — he dismissed those counts.

But I think that — that in the light of what the narcotic agents observed when revealing with the question of probable cause and not with the question of legal evidence establishing truth beyond a reasonable doubt, I think there — it would have been reasonable and — and was reasonable for the — for the agents to search the furnace room as well.

This is not — this — these — this is an adjacent area in — in a — in a basement of a — of a rather small building.

This is not a — a vast expense and this is not a search of — of an entire building.

This is a search of — of the — what is an essence, a one-room apartment and the adjacent furnace area.

As to both areas, the officers having reason to believe that — that either narcotics or marked money are — are on the premises.

Earl Warren:

Well, as I understood you — you pointed out that this was so detached.

The furnace room was so detached from the quarters of the defendant, that you — you couldn’t say that when he used his passkey on the furnace room, he was making an illegal search on the — on the defendant’s premises.

But now, you — you take the other view of it and you say that they are so closely connected between the two.

That is perfectly reasonable for them to — to search the furnace room because they were also searching his apartment.

Leonard B. Sand:

I — I think, I can best answer that, Mr. Chief Justice, by — by again stating the facts, the — the physical layout here.

When you go through the — the outside entrance, there are two doors.

One of which is to the furnace room and the other which is to petitioner’s apartment.

There is another means by which you can gain access to the basement and that is by going through an upper level which officer Wurms did using the skeleton key to open the door which lead only to a staircase, down to the furnace room.

That’s — the — the skeleton key is used on the — on this upper level, then going through the furnace room and — and coming out into the hallway.

Leonard B. Sand:

Now, what agent Wilson observed is Shepherd going down the stairs into the basement area and then nobody in the hallway.

He crossed the street.

He looked across the street and then saw a light go on in the furnace room, which up to that point, had been darkened which I think supports the inference that up until that point, there was nobody in the furnace room.

Thereafter, Shepherd comes out.

I think that those facts certainly supply probable cause for the agents to believe that what had occurred is that Shepherd went into petitioner’s apartment that thereafter, somebody went from petitioner’s apartment into the furnace room and thereafter, Shepherd — Shepherd emerged.

I think it is not necessarily inconsistent to say that it was not — that the — as — as Judge Youngdahl did say that there was not sufficient legal competent evidence to establish beyond a reasonable doubt that petitioner had possession of the furnace room, not in — necessarily inconsistent to say that and to say at the same time that there was, on the basis of this — these facts observed by the agents, probable cause to believe that in the furnace room as well in petitioner’s apartment, there might be the marked money or the narcotics.

I — I would like to make reference to — to two other matters.

One is although not raised by petitioner in this case, there is a question as to sentence.

Felix Frankfurter:

As to what?

Leonard B. Sand:

As to sentence.

There were consecutive sentences given here with respect to the same narcotics transaction, which raises problems which this Court will — will consider in the Grower case, in which certiorari has been granted.

There is no need however, to withhold disposition of this case.

The Government respectfully submits pending the outcome in Grower because in — in any event, petitioner would be serving a — a legal sentence.

Consecutive sentences were imposed on counts two and three with respect to the same narcotics and in the Grower case, the question is whether such consecutive sentences can be given.

And what I’m saying is although not raised here, the record indicates that that problem is here, but that should — if this Court should decide that those sentences are — cannot be imposed by collateral means, the — the sentences can be corrected, so there is no need to — to withhold this decision.

How much did she get in total or he gets?

Leonard B. Sand:

The period was from one to four years on the — in the first count which was the conspiracy and one to four years in count one and 30-month state years on each of counts two and three.

Felix Frankfurter:

May — may I ask you, Mr. Sand, on the assumption that you properly made in putting the matters to the Court.

Is the question one, because they made a different problem (Inaudible) but when it says, is the question one — would the question be one of statutory construction, namely put under the statute?

These must be separately imposed, maybe separately imposed or like the — whatever the name of that one.

Leonard B. Sand:

(Inaudible)

Felix Frankfurter:

Were a (Inaudible) settle the rule that wouldn’t have (Inaudible)

Leonard B. Sand:

(Inaudible)

Felix Frankfurter:

(Inaudible)

Is it a statutory question problem that could dispose of it without — with this effect.

Leonard B. Sand:

I find the difficulty between — to anticipate the basis on — this is the same sort of problem as the (Inaudible)

Felix Frankfurter:

No, I’m not asking for an answer because I —

Leonard B. Sand:

The unit of crime —

Felix Frankfurter:

— I want to know if this is a statutory — if it’s a question of construction of the statute, so that one may base that and not be confronted with double jeopardy problems as such constitutionally.

Leonard B. Sand:

Well, I — I think if it raises double jeopardy problems and it is such a problem.

Leonard B. Sand:

In other words, I — I think that — that —

Felix Frankfurter:

In other words, could one construe the narcotics statute.

I don’t know what to say, but it disallowed having two counts for this kind of separate units within a bunch of — of alcohol and elicit drugs.

Is that — is that the situation?

Leonard B. Sand:

Well, Mr. Justice Frankfurter —

Felix Frankfurter:

But just tell — whatever —

Leonard B. Sand:

Well — well candidly, I don’t — the answer, I don’t know, if correct —

Felix Frankfurter:

And the record wouldn’t tell us?

Leonard B. Sand:

Well —

Felix Frankfurter:

How could we (Inaudible)

Leonard B. Sand:

Well, the record — the record will show that —

Felix Frankfurter:

What would it show?

Leonard B. Sand:

Well, it will show the narcotics statute.

It will show the context of the — of the counts.

It will show that — that one count which is for the — in possession and the other count which is for facilitating the transfer.

Felix Frankfurter:

Well, isn’t the — it was breaking up a single bundle of stocks into two separate counts, is that it?

Leonard B. Sand:

I think whether —

Felix Frankfurter:

(Voice Overlap)

Leonard B. Sand:

— it is doing that, is the problem.

Felix Frankfurter:

Well, let me — the statutory — then it certainly in the first and two other questions of statutory construction.

Leonard B. Sand:

Yes, apparently.

Felix Frankfurter:

All right.

Leonard B. Sand:

I would like all to just — to call the Court’s attention in one case which unfortunately is not — not cited in the Government’s brief which raises a question that I have not — have not been totally covered in oral argument and that is Barientes case, B — B-A-R-I-E-N-T-E-S against the United States.

Earl Warren:

Is that in your brief?

Leonard B. Sand:

No, Mr. Chief Justice.

235 F.2d 116, certiorari denied, 352 U.S. 879.

William J. Brennan, Jr.:

Bearing on what, Mr. Sand?

Leonard B. Sand:

It — it bares on the, whether the exclusionary rule of the Weeks case will be invoked, where the question is not — where the question is the mode of entry, not whether there is probable cause and authority to be (Voice Overlap) —

Earl Warren:

Mr. Harris.

De Long Harris:

Mr. Chief Justice, the Barientes case that my friend just mentioned here, for the case in which this Court denied certiorari was from the Fifth Circuit.

De Long Harris:

There was a per curiam opinion in which the Court used this language in the per curiam opinion, while the use of the excessive force that is unnecessary for as in any case be depreciated, evidence obtained on a valid one is not thereby made inadmissible.

So on the first phase Barientes which is not the situation here, because there was a valid one and they were of course discussing what I first discussed, 3109.

But the curious thing about the Barientes decision is that Judge Reeves concurred specially and in the special concurring opinion, Judge Brown concurred with the special concurrence wherein they held that Barientes really didn’t have a question of excessive force because the record shows that there was no force, and the Government argued and in the petition before this Court, in our position to the petitioner for certiorari, the Government argued that in Barientes, there was cause used.

And probably, it might have been the basis of the denial certiorari of the Barientes case.

So, Barientes case certainly doesn’t apply here.

I — you have the Barientes case.

In fact, I have a copies of the petition and the brief, you all know about it, but the factual question was not present in that case.

And secondly, it was a case we won.

I would like also to address myself to the question of Wilson’s testimony at the trial.

Now, throughout all these proceedings at the trial in the Court of Appeals, I think Judge (Inaudible) in the majority opinion said that they could not tell from the record what actually happened outside the door in a few minutes.

But the Government had no time to argue that it was the fact that anybody said, “You are under arrest,” before that door was broken.

Mr. Sand also complains that we didn’t cross-examine Wilson at the time of the trial.

Now, bear in mind, Wilson had testified on the hearing on the motion.

Now, this motion to suppress was filed within a matter of days after the arrest and filed to indictment.

After the indictment and during trial and before the jury during the general hearing of this case, it was then that Mr. Wilson said that — these words, “You are under arrest.

We want in.”

But curiously enough, Wilson didn’t even remember the chains being on the door’s (Inaudible).

And to refresh his memory, the counsels for Miller had to produce the transcript on the motion to read to him his testimony at the hearing on the motion showing that he had talked about breaking the chain.

But when he got to the trial stage of this proceeding, he didn’t remember anything at all about the chain and I think that’s the reason why in the trial proceeding, the United States hasn’t mentioned so much about this testimony of Wilson, because Wurms was the man.

He put his hand and ripped the — the chain off.

He was the man who broke the door and at the motion, and at trial, he testified that there was nothing said about arrests prior to the breaking of the chain.

Now, on page 134 of the record if the cross — if the — the cross-examination of Mr. Wilson, I think it starts on — at the trial, starts on 133.

And on page — page 140 — 134, Wilson, on cross-examination, is asked this question.

And of course, he has said above in answer to the question by the Court, the Court says, “All right, we want a deference, the witness.”

Also, Wurms knocked on the door, he says, “Blue, open the door.

There was a voice inside that says; “Who’s there?”

And Wurms again knocked in the door — on the door and says, “Blue, open the door.

Police!”

Now, that was a response to an inquiry by Judge Youngdahl at the trial.

Then, following that inquiry by the Court, he was asked this question.

De Long Harris:

“That was everything also Wurms or yourself said?”

Answer, “Until the door was opened yet.”

“Now, when you say, until the door was opened, is it a fact that the door was not opened except by yourself and also Wurms?”

“No, sir, it is not.”

Question, “Well, I think you testified there was a chain on the door which was forced by yourself and also Wurms.

Didn’t you testify to that?”

The court, “He did so testify.

I don’t remember him saying anything about the chain being forced.”

Question by Mr. Willams, “How was (Inaudible) to the effectiveness to the apartment?”

Answer, “Until now, I had opened the door and looked out at the door and then refused to let us in the place, the door was forced open then.”

Question, “Was there a chain on the door?”

Answer, “Not to my recollection.”

Now, that is the same Wilson who also in the other proceeding, had told and described in perfect detail what had — happened with respect to the chain.

And that in the — the further cross-examination of Mr. Wilson, when he was confronted with the transcript of the hearing on the motion, he then recall that he had so testified at the hearing on the motion and I think this testimony concerning the word, “arrest” prior to the answer to the door, comes within the same category.

Supposing — supposing the chain hadn’t been broken and the door was opened and the police officers put there — put in, pushed their way in, could that have been bad?

De Long Harris:

Well, if all that —

Assuming probable cause, et cetera.

De Long Harris:

Well, in the Gatewood case, there was no act of breaking on the door.

It was just according to the record.

In that case, they forced open the door.

Now, in the District of Columbia, we have the (Inaudible) decision which is in the (Inaudible) and I believe quoted in our brief wherein they’ve called back again to the common law, where they said, “You find a — a door slightly ajar.

You may push it, but if any force is required to open that door, it constitutes a breaking and you can’t do that.”

So, I think, if you’ve got to use a force by pushing with a foot, I think that constitutes a breaking.

Depends on how heavy you are.

De Long Harris:

That depends, Your Honor.

I’m naturally 150 pounds [Laughs].

Thank you, Your Honor.