Morales v. New York

PETITIONER:Morales
RESPONDENT:New York
LOCATION:Symphony Cinema, Boston, Massachusetts

DOCKET NO.: 86
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 396 US 102 (1969)
ARGUED: Nov 20, 1969
DECIDED: Dec 08, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – November 20, 1969 in Morales v. New York

Warren E. Burger:

Number 86, Morales against New York.

Richard T. Farrell:

Mr. Chief Justice and may it please the Court.

Richard T. Farrell for the petitioner, Melvin Morales.

Warren E. Burger:

Mr. Farrell.

Richard T. Farrell:

Your Honors, this case comes to this Court.

The writ of certiorari to the Court of Appeals of the State New York which Court held that certain police activity founded upon less than probable cause, do not constitute a violation of the defendant’s rights under the Fourth Amendment and did not in fact the confessions yielded by the defendant after he resist as we contend in violation of the Fourth Amendment.

The facts in this case are fairly simply set forth early in the morning of October 4, 1964 in Bronx County, New York.

Mrs. Adi Brown died of multiple stab wounds, 31 to exact, and looked upon her by at that time an unknown assailant in elevator in a 21-storey-apartment house in a public housing project in the South Bronx.

Police efforts at the scene at that time on October 4th yielded no leads.

But on October 5, 1964, Detective Aubrey Ferguson was walking on the vicinity of the scene of the crime and met Mrs. Rebecca Morales who is the mother of the petitioner here Melvin Morales.

Detective Ferguson knew the Morales family but knew them at a different address.

He asked Mrs. Morales, “What are you doing here?”

She said, “Oh, I live there,” pointing to the building in which the crime had been committed.

The police also, sometime after October 5th, had information from a young man who testified on the trial that he had been outside the premises where the crime was committed had seen someone outside the building at the pertinent time.

Potter Stewart:

Could that be the very young boy?

Richard T. Farrell:

Yes, that’s Everett Roberts, Mr. Justice Stewart whose testimony, the District Attorney abandoned in the submission by the time, it’s very unusual, we try this case in the Supreme Court.

They finished cross-examining this young fellow.

Here, the crime being committed sometime in October or November or December of 1964.

And I doubt very much if he could’ve given a description much better than that available by looking at page 1320 of the record of Morales as a skinny Puerto Rican which is a fairly active description of a great number of people in the South Bronx.

But on October 11th, the police, to quote again from the testimony of Detective Ferguson about page 742 in the record said, “We rounded up some of the neighborhood narcotics addicts, and probably did do to about October 11, 1964.

The police officers came to the conclusion that Morales who did not live in the building with his mother.

They found that he was an inhibitory of the neighborhood not seen around by who we don’t know exactly but it appears where these narcotics addicts have all rounded up on the 11th.

And the police then concentrated the records on trying to find Melvin Morales to talk to.

The principal thrust to their evidence was to contact his mother, Mrs. Morales, Rebecca Morales, telling her that they were interested in speaking to Melvin.

Warren E. Burger:

Now, if instead of this phrase that you said the detective used to describe their process of getting this information.

If instead of that, a dozen detectives or 24 detectives had walk up and down the street talking to every narcotic addict and the others of that world and got the same information.

Would you say, that the case is different or the same?

Richard T. Farrell:

Well, Mr. Chief Justice, I attached those significance, the fact that the officer, we rounded up these other narcotics addicts.

Unlike the —

Warren E. Burger:

Oh, I — I assume that you did when you emphasized that phrase so much.

Richard T. Farrell:

Well, you have to excuse the evocate for trying to use what I consider perhaps a loaded term.

I do not attach any significance the fact that there was a round up.

Warren E. Burger:

Oh, well you’ve cleared up the question for me.

Richard T. Farrell:

Mr. Chief Justice, on October 13th, approximately nine days after the event that led to the homicide investigation of the murder and about three days after the police started to concentrate to the evidence on finding Melvin Morales.

The police officers followed Mrs. Morales from her home to her place of business and stayed at her beauty parlor.

About her four o’clock in the afternoon, Mrs. Morales was visited by one of the officers, I believe it was Detective Carol who asked her, “Well, do you think your son will be around?”

She said, “Well, I think he will be up this afternoon.”

As a matter of fact, the testimony in the record by Mrs. Morales indicates very clearly that she had informed Melvin Morales that the police were interested in speaking to him and Morales seems to have said, “That’s alright mother, I will come up.”

At eight o’ clock that evening, on October 13th, Melvin Morales did in fact come up to his mother’s beauty parlor.

He arrived in a taxi cab, stepped out of the cab.

Detective Carol took Morales, put him in Detective Downe’s car, Detective Downe went to see Mrs. Morales and set him words were in substance, “Come on outside, we have your son.

Please, pay the taxi cab.”

Mrs. Morales, “May I talk to him?”

The detective, “No, that isn’t necessary.”

As the people was stating the facts in the respondent’s brief points out, the officer did interfere with her access to her son.

The police officers then took him in the detective’s car, down to 42nd precinct, brought him upstairs in the station house, put him in the Lieutenant’s office, and commenced the process of interrogation.

Downe made some reference to the following rights of the petitioner.

He said you can have a lawyer.

You don’t have to talk to us and anything you say to us may be used against you.

Morales declined to speak to Downe at that point, said, “I’d rather speak to Detective Carol.”

Detective Carol returned from his brief departure to get coffee and cake.

The first words out of Morales’ mouth in words were in substance were, “Carol, you know, I can’t take a beating.”

Carol replied to that, “Stop building offenses, stop making alibis, stop building threats to him.”

Lean on, there’s one thing you can’t do?

You can’t lie to God.

Do you believe in God?

Morales, “Yes I do.”

“Between you and your God, did you do this thing?”

Morales, “Yes, I did.”

William O. Douglas:

How long did those was taken?

Richard T. Farrell:

From the time that Morales was picked up, Mr. Justice Douglas until —

William O. Douglas:

The interrogation —

Richard T. Farrell:

Until the time interrogation start that was approximately 45 minutes.

From about 8 o’clock in the evening on October 13th until 8:45 when he made the first doubting statement.

He responded the question, “Did you do it?

He said apparently he said, “Yes, I did.”

William O. Douglas:

45 minutes?

Richard T. Farrell:

Approximately 45 minutes, Your Honor.

Warren E. Burger:

Well, I’m not clear to your answer.

45 minutes after Detective Carol came in the room or 45 minutes after he got —

Richard T. Farrell:

45 minutes after the initial taking into custody outside his mother’s beauty parlor.

The trip to the station house —

William O. Douglas:

No, no, no.

Richard T. Farrell:

It was 40 — well, Your Honor —

William O. Douglas:

No.

How long after they — Carol got into the station house, Morales got into the station house when the statement was made.

Richard T. Farrell:

It would seems to be about 10 to 15 minutes, Your Honor.

It’s impossible to fix the time with any precision.

It was 45 minutes in the initial taking of the custody and approximately 10 to 15 minutes between the time they arrived to the station house to the time of the first statement, “Yes, I did it.”

Carol then repeated to Morales substantially the same warnings given to him by Detective Duff earlier and Morales made a full-blown verbal confession that he had needed narcotics.

He had been in his mother’s apartment and got outside for breath of air.

He saw a woman entering the building followed the woman into the building, went into the same elevator with her and the elevator went up.

He snatched at her purse, she resisted, he stabbed her, the elevator stopped, and he fled.

At that point, Detective Downe return to the interrogation site and Downe and Carol made essentially this observation to Morales.

Now, since you and Morales are going to have to repeat you a story to detective of a homicide squad carrying this case, precinct detective who’s in charge with a responsibility in this case and perhaps to the District Attorney in another unspecified list of police officers.

Why don’t you write your statement down so no one change it on you?

Morales complied and that led to the second confession in this case or polygraphic statement completed about 9:05 on October 13.

Thereafter, and true enough to the police officer’s words, there was a further procession of police officers interrogating Morales.

They substantially reiterated his confessions.

Later on in the evening, an Assistant District Attorney for Bronx County’s Office arrive on the scene, conducted a question and answer session with Morales, with the aid of a stenotype recorder and then after that session was completed sometime early on the morning of October 14th.

Richard T. Farrell:

Now, about four-and-a-half to five hours after the initial taking into custody, Morales was taken to the scene of the crime where he reenacted the crime.

At four o’clock in the morning of October 14th, he was in the emergency ward of Morrisania Hospital being treated for what appeared to be narcotics withdrawal symptoms.

A week later, around October 20, police officers visited Morales in Bronx House of Detention.

They said they wanted to talk to him and according to the police officers’ own testimony, at that point, Morales had formed the new resolve.

He said, “No, I will not talk to you, I am going to fight this thing,” meaning, obviously the charge of murder.

Morales was duly tried and convicted in the Bronx County.

Preliminary hearing in the question of voluntariness of his confession the famous Huntley hearing in New York mandated by this Court’s decision in Jackson versus Denno was held.

Morales did not testify at the Huntley hearing, the trial judge found his confession voluntary.

Jury was charged on a question of voluntariness, the jury convicted, Morales who received a life sentence.

The appellate division of the Police Department in New York affirmed unanimously without an opinion.

The Court of Appeals in the State of New York affirmed again unanimously but this time, with an opinion.

This Court since we granted certiorari in this case on April 21, 1969.

Your Honors, at the time the police officers picked up Melvin Morales, they knew the following concrete specific information about it.

His mother lived in a building where the crime was committed.

He was a narcotic’s addict.

He, they have been told, had not been seen around since the time the crime was committed.

And that Your Honors is about all they knew about Melvin Morales.

Armed with this scanty information, the police officers formed a very obvious intention of making Morales into their custody and bringing him down to the station house for interrogation.

The Court of Appeals of the State of New York said in its opinion that, it may be conceded that there was not probable cause.

They did not make a finding on the question whether there was a probable cause and I submit on the record in this case.

And especially in the light of the testimony the two officers who picked Morales up in the first place, when saying, “Well, I have nothing definitely to tie him to the crime.”

And the others saying, “I was dubious about his connection with the crime”, and it wasn’t until the interrogation brought out what it brought out that he was convinced he was guilty.

It’s quite obviously no probable cause.

Further, the Court of Appeals did however seem to make the finding, a finding which I submit is probably binding on this Court.

The Court of Appeals said at page 58 of its opinion at 22 New York Second, the record does not support a finding that defendant consented to his detention and question.

It says the Court of Appeals in fact there was no consent.

In fact there was no probable cause, it does not necessarily make this issue here unreasonable.

We must examine to see under all the circumstances whether if this issue here it was reasonable or not.

The Court of Appeals of course is writing in May of 1968.

They are writing without the benefit of the elimination supplied by this Court in the case of Davis versus Mississippi, decided on April 22nd, the day after this Court granted certiorari in this case.

Richard T. Farrell:

Davis versus Mississippi, Your Honors, I think makes it painfully clear that if the police do not possess probable cause, do not have a warrant, they cannot take a citizen off the street and bring him to the station house.

The only thing they can do is footnote six in the Davis opinion.

It reminds the country, the only thing they can do is request the voluntary cooperation of the citizen.

Morales was not requested to voluntarily cooperate.

He was grabbed by one police officer, thrust into the other officer’s car, and take him down to the station house.

The Court of Appeals makes the almost chronicle observation.

The defendant testified he was so loosely guarded when taken from the car to the station that he could have safely escaped.

Well, I don’t know about that.

All he said in his testimony, at page 9 to 15 in the record is that the police officers didn’t hold them by each arm.

But the Court of Appeals own but this was a reasonable seizure within the Fourth Amendment.

No probable cause and therefore caused no arrest, couldn’t be an arrest, there was no basis to link this man to the crime.

No consent to the Court of Appeals here but the question is, “Was it reasonable to do what the police officers did?”

And then marching through their consideration of what constituted reasonableness, the Court of Appeals is that there’s no practical alternative of taking the man off the street and dragging him down to the station house.

The police station is a better place to interrogate defendants.

We iterate on oral argument and they say in the brief.

That’s exactly what this Court I think decided Miranda versus Arizona because the police station is such a dandy place to interrogate suspects.

Potter Stewart:

And he raised his Fourth Amendment at the time of the trial?

Richard T. Farrell:

Your Honor, the first time of the Fourth Amendment claim was raised in this case was by me in the New York State Court of Appeals.

First time in this case, Riley versus Ohio however, that is the — that’s turning just been point out, stands for the proposition that once the contention has to be considered by the highest court of the State, that question is probably preserved for review by this Court.

And Your Honors, the Court of Appeals quite obviously considered this question as a brief reading of its opinion will indicate.

Although it was raised, and I had no problems about it admitting that writ, the question was raised for the first time by me in the Court of Appeals, that is not I think particularly an objection to this Court considering that question since the highest court in New York is considered the questions probably deserve for its review and then therefore deserve —

Well, it maybe true but it also — it might be true to state might have more proof for the administrative background under which he both police’s suspicions.

Richard T. Farrell:

Well, that is —

Well, that came into their attention.

Richard T. Farrell:

Yes, Mr. Justice Harlan, it’s one of the principal scapegoats built into the respondent’s brief in this case or we may have more evidence.

But that question I think is referable to the proper procedure under the New York practice, since the question has been properly preserved for review by this Court.

I think that the only thing that the people can rely on is what they got in the record right now.

They could perhaps go out and beat the bushes now five years after the event, and find some more evidence.

Perhaps this Court could be convinced to send it back for rehearing, I do not think that it’s necessary on the state of the record and especially in light of the testimony of the two arresting officers.

Because those two arresting officers had nothing even remotely approaching in their view of probable cause to make the seizure.

Richard T. Farrell:

And as these two, if you will, petty officials to borrow from Boyd versus the United States, whose determination to take the citizen into custody that are on the review in this Court in this case.

If this Court be not convinced that the unconsented to seizure of a citizen for the purposes of bringing them into the police station for interrogation does not violate the Fourth Amendment, then I quite frankly confessed a bit of confusion about what the opinion of Davis versus Mississippi was driving at.

But the —

What bearing do you have to stop in the first case, do you not?

Richard T. Farrell:

I don’t think Terry versus Ohio, Sibron and when or to repeat this have any bearing on this case at all, Mr. Justice Harlan except for the very general proposition that the police may make some temporary stoppage of a citizen if there is a reason to inquire his suspicious conduct.

The only thing the police officers saw that Morales do was to get out of a taxi cab.

That’s hardly the kind of conduct, I think, that Terry envisions.

Warren E. Burger:

Well, whatever some events that led them to be there to see him get out of the taxi cab, were there not?

Richard T. Farrell:

Yes, Mr. Chief Justice, there certainly were.

Warren E. Burger:

And would you think that didn’t happen to be there?

Richard T. Farrell:

Oh, they were there because they were looking for Melvin Morales.

But it’s the reason why they were looking for Melvin Morales, that makes the seizure here unreasonable within the ambit of the Fourth Amendment.

They were not operating on anything that remotely approaching probable cause for his arrest.

They had nothing but a bare suspicion that he might have something to tell them about the crime since of course, his family lived in the building.

He was an addict and he had not been seen around.

This hardly, intellectively points the finger of suspicion at Morales.

The Court of Appeals have to checkerboard square of investigation pointed only to Morales but at most, to give the people their due, four out of those 64 squares on any checkerboard were filled in here.

That hardly, I think mounts up to a kind of justification for a seizure and detention of a citizen as into this case.

To say that, since Morales knew the police was looking for him that he is coming to his mother’s beauty parlor, may be read as a surrender flies in the face of both the determination by New York Court of Appeals, that there was nothing in this record to support a consent of argument.

And there’s also tantamount in my opinion to saying that a lamb that goes to the pasture and surrenders himself to the wolf.

Morales wanted to surrender to the police.

There are better places to surrender to the police than your mother’s beauty parlor.

There are police stations, many of them.

But Morales, I don’t think can be said to have surrendered in this case.

I think the Court of Appeals has decided that question that there was no surrender, no consent to interrogation at that place under the circumstances.

And since that is a determination, I believe on the question of fact by the highest Court in the State of New York.

I do not think that that question of fact is reviewable by this Court.

But if the Court be convinced that there was a violation of the Fourth Amendment, it becomes another more pressing problem.

If the Fourth Amendment was violated, what affect does should that have on the use of Morales’ confessions.

Taking my lead from the American Law Institutes modal code of pre-arraignment procedures especially Article IX of that document and from Wong Sun versus the United States.

Richard T. Farrell:

I believe that the answer to that question is once the confessions are taken so close, at least the point of time, to an unreasonable seizure within the Fourth Amendment.

Those confessions must be barred from evidence without reference to the fact of the voluntariness or no.

As this Court has said time and time again, the purpose behind the exclusion of every rule is to discourage the police from engaging into prohibited conduct.

Prohibited conduct here is an investigatory detention upon less than probably cause.

The involuntary submission of the citizen to the custody in the police station, if the Fourth Amendment is to be protected in this conduct, in this context, the confessions obtained at the police station just by John Davis, his fingerprints in Davis case must be barred from evidence, whether they were voluntary or not.

The next step, of course, is that the Court not be willing to buy a rule based upon per se exclusion.

We then come to the question, was there the kind of attenuation between the initial police illegality, that is the seizure of Morales on the street corner and his confessions that would permit the Court to say that there has been a dissipation of the primary obtained.

Again, the leading case is Wong Sun versus the United States.

Their Blocky Toy was confession was excluded from evidence, were seized in his own premises made admissions almost immediately.

Wong Sun took off, was at large for several days, then came back, and made his confessions, as to Wong Sun came to the primary illegality of any uncertain and unanticipated with, as to Blocky Toy as to Melvin Morales in this case.

The link between the illegal police activity of seizing Morales without probable cause and taking him without his consent into the custody is so closely linked both in time and in circumstances.

Because Morales was taken down to the police station and interrogated almost immediately, the mere fact of interposition of, well, I think the properly called that that’s point in time Escobedo warnings, should not by and off themselves be a sufficient attenuation of attained.

The oppressiveness of the initial seizure was followed by the oppressiveness of the detention at the place selected by the police which was followed by the oppressiveness of the isolation from everyone else in the world but the police, which is followed in short order by the confessions.

The link between these confessions and the seizure is so close both in time and in circumstances that I believe Your Honors that it cannot be reasonably said in the realistic appraisal of this record.

That there has been a kind of attenuation between the unlawful police conduct in the first place violating the principles unasked by this Court less than seven months ago in Davis versus Mississippi and the confessions to say that the confessions are not the tainted produce of this initial police illegality.

And further Your Honors, we submit that the confessions of the defendant, each and every one of them were not proven to be voluntary beyond the reasonable doubt.

He did confess, he was one but he was a narcotics addict.

A group prone to beguiles to have a rather shallow perception of their rights and responsibilities.

He was isolated from his only, only ally in the field, his mother, who testified that she wanted to tell him that he shouldn’t speak to police officers.

He was alone in the police station.

He was isolated.

He did after the effect but as Haley versus Ohio, I think indicates is also remained to look after the fact for the — for whatever light, the subsequent events may throw on his gun before him.

After that he did wind up in the emergency ward of Morrisania Hospital being treated for what’s looked like, narcotics withdrawal symptoms and when he have been completely free of that is of police custody.

When he was completely alone for several days to cogitate, ruminate over the possibilities of his right not to speak to a police officer.

When police officers arrived on October 20th, Morales told them and says, “Go away, I don’t want to talk to you.”

Removed in time and space when he inherently submit inherently coercive atmosphere surrounding with the police station, Morales found the resolve that would’ve stood him in good state, if he had been in the position to assert that result at the time it was initially taken into custody.

How old is this at that time?

Richard T. Farrell:

Mr. Justice Harlan, at the time he was arrested, he was partially 30 years of age.

He’d been a narcotics addict since he was 17 years old.

Graduated from junior high school, had some trade school experience.

Richard T. Farrell:

He had a yellow sheet, the arrest record in New York is called, of course the yellow sheet of some sizeable dimension.

And the Court of Appeals that this is no obey than would this was, may have familiar with the criminal processes and to buttress their conclusion of Court of Appeals in New York City.

He was so familiar with the kind of processes that he chose not to rely on the fact that it was unlawfully arrested, but he Morales that I’m speaking of Morales chose to rely on the stronger argument that is Fourth Amendment rights that was violated.

Your Honors, I thought of that argument not both in Morales the experience to the criminal.

The mere fact that he was 30 years of age, Your Honor, I submit, the fact that he had a rather extensive criminal record.

This make him an expert on the ins and outs of the Fourth Amendment, the Fifth, the Sixth, the Fourteenth and also, I find that the requirement that issues be raised in the normal cause of events at the trial court.

Here, however, he had the — he couldn’t afford a better lawyer, so he got someone who made really an error but raised the issue that this Court must now decide.

Can this confession or these confessions be admitted in light of the violation of the Fourth Amendment rights?

Your Honors, thank you very much.

Warren E. Burger:

Mr. Roberts.

Burton B. Roberts:

Mr. Chief Justice, may it please the Court.

Assuming there was no surrender here, assuming there was no surrender, in this case, and if there was a surrender, certainly the Fourth Amendment would not come into play. The taking of the custody, the detention, the seizure, the arrest, a Melvin Morales is under the circumstances of this case, was reasonable and appropriate within the meaning of the Fourth Amendment.

The Fourth Amendment as oppose to the Fifth and Sixth Amendment applies a flexible and variable standard, it is not absolute like the Fifth and the Sixth.

Guidelines have been provided by Terry against Ohio, and I submit that the people have the right to detain someone where there is a reasonable basis for belief that that individual has information concerning a crime which has been committed.

Justice Frankfurter stated, it much more adequately denied.

In Columbia, in which he said there are things which cannot speak and that it’s necessary to detain and to interrogate witnesses who possibly maybe suspects in order to ascertain who has committee a particular crime.

This case like all cases appearing before this Court, there has to be a balancing between society and the individual.

In this case, the petitioner whose counsel has characterized as a lamb was found by jury of his peers to have delivered 31 stab wounds to a 56-year-old woman in Bronx County, Mrs. Adi Brown.

The police arriving upon, the same questioned individuals and before this investigation was over, they literally questioned over a hundred individuals.

One information that they received that first night, they knew that the individual or possibly the individual committed this crime lived in that building because one of the tenants after the elevator arrived upon his floor heard footsteps below this particular floor and heard a door.

They questioned individuals in the building.

They questioned Mrs. Morales.

They questioned her son Snooky and the evidence indicates in the record is all we have to go on is that two individuals were interrogated by the police at the station house.

Snooky, Snooky Morales and a man by the name of Shortie, they had no probable cause to arrest in a technical sense of the term either Snooky or Shortie.

But I respectfully submit, conducting this investigation based on the information which they had.

They had a reasonable basis to detain and take him to the station house, these two individuals had questioned him and checked out their alibi.

Ascertain whether or not these individuals could clear themselves in order to solve this crime involving Mrs. Adi Brown.

They could never revive Mrs. Adi Brown but it was incumbent upon these police officers, characterized as petty public officials to work from day break to back break.

In order to solve this crime, so there would not be more Adi Browns, figuratively speaking, in Bronx County in the City of New York.

They had to work, and they had to investigate, and they had to interrogate, and I respectfully submit, they went into the street and they knew these police officers.

Burton B. Roberts:

They knew Melvin Morales.

They knew Melvin Morales to be a hustler and a petty thief who had numerous convictions as a narcotic addict.

As a policy, they knew this individual and they knew his haunts, and they looked in his haunts.

And this individual was not seen in this familiar haunts.

During the course of this investigation prior to the time that Melvin Morales was taken to the station house, they went and interviewed the mother.

Detective Ferguson spoke to the mother.

Detective Ferguson was told by the mother that her son was not around, that she had not seen her son for sometime.

Subsequently, several days later, to Detective Carol and Detective Downe, when she discovered they was searching for her son and looking for her son.

She gave an alibi for her son.

She said, “He was here.

He was here in the apartment.

A detective had gone through the premises.

A detective who knew Melvin Morales, he had not seen Melvin Morales in the apartment.

The little boy and his age doesn’t appear on the record or in the record, was a little boy who had a Kombi, a van, and this little boy was walking his friend home at approximately 3:20 in the morning.

And Everett Roberts according to the testimony in this record and I’m not going to comment on what the Assistant District Attorney stated concerning his testimony at this time.

But that little boy described to the police prior to the time that Melvin Morales was detained or surrendered, described to the police and individual a receding hairline, a Puerto Rican, thin.

And indeed the description matched in the minds of the detectives who are working on this case, Melvin Morales, and intensified their search for Melvin Morales.

And this boy in Court identified Melvin Morales as the individual he saw at the time of a homicide and this little boy stated that he saw this individual on the day, on the Wednesday, following the Saturday night or Sunday morning that he saw the individual at the bench infront of this building.

Now, the Court’s notion, a probable cause is less than the conservative attitude of both prosecutor and police officials with regard to probable cause, as evidence by the Peters case.

And I state to this Court, that if there was probable cause or this Court was able to find a probable cause from the Peters case or in the Peters case.

Certainly, the Court may very well find from the record we have here, which we were not able to develop because the question of unreasonable detention was never raised in the trial Court.

It’s not raised in the Appellate Division or at the immediate appellate court but was first raised, raised for the first time in the Court of Appeals.

Certainly if it was raised, I respectfully submit, we’ll have an opportunity to develop evidence and produce evidence which show how all of these information into hold and whether or not indeed, we had additional information which would enable us to have probable cause to make the arrest.

But I state that on the record itself, there was a reasonable basis which I contend is all at the Fourth Amendment requires, a reasonable basis to detain this individual in order to interrogate him and not because there was reasonable belief that he had information concerning the commission of this crime.

Did the two officers — the officers who picked Morales up at his mother’s beauty shop, did they testified?

Burton B. Roberts:

Mr. Justice Harlan, they did and they testified, I might add and if I may just go off the subject that I have now and go back to voluntary surrender for a moment, they testified that they saw the mother and stated to the mother that they were looking.

They were looking for Melvin Morales, her son Melvin Morales, and she says, “Well, he’s been around.

He’s not hiding.

I’ll tell my son that you’re looking for him Detective Carol.”

And indeed, she called up her son and this is the testimony in the trial, testimony of Mrs. Morales.

Burton B. Roberts:

Substantiated in part by Melvin Morales himself when he testified and she said, “Melvin, Detective Carol wants to see you.”

And he said, “Well, I’ll see him.”

She says, “Well, come up to the beauty parlor.”

And the same day that he arrived at the beauty parlor, she spoke to that son and told him where she would be and she then told Detective Downe and Detective Carol that her son would be at the beauty parlor, later that evening.

And at eight o’clock, the son arrived.

Now, he knew that Detective Carol was looking for him.

The mother stated, “Come to the beauty parlor.”

He did arrive at the beauty parlor.

Detective Downe and Detective Carol were there.

He voluntarily went with Detective Downe and Detective Carol to the station house.

This certainly is different from the Davis case and that this 30-year-old man as contrast to a 40-year-old boy.

This 30-year-old man voluntarily went with the police officers to the station house, no handcuffs, no chains, no gun, with detectives whom he knew and whom he had seen certainly for the last 13 years of his life, taken to the station house.

And there in the station house, interposing his own free will within 10 to 50 minutes after Detective Carol was advised of his rights prior to Miranda, told that he didn’t have to say anything, that anything he said could be used against him and that the detective would testify in Court concerning what he said.

Thurgood Marshall:

Mr. Roberts, when was he arrested?

Burton B. Roberts:

He was arrested on October 13th, 19 —

Thurgood Marshall:

Where?

Burton B. Roberts:

At the beauty shop, outside the beauty shop, sir.

Thurgood Marshall:

You mean he was arrested outside the beauty shop and went voluntarily with them?

Burton B. Roberts:

Sir, I used the term arrest, the constitutional term arrest, when the person’s right to freedom and movement is interfered with I considered arrest.

I consider it arrest —

Thurgood Marshall:

So, from then on, he wasn’t voluntarily free, was he, from that moment on?

Burton B. Roberts:

From that moment on, he was not voluntarily free to go, sir.

According to the testimony of Detective Duff and Detective Carol —

Thurgood Marshall:

And what basis did you have to arrest him?

Burton B. Roberts:

Sir?

Thurgood Marshall:

What basis did you have to arrest him?

Burton B. Roberts:

The basis that we had —

Thurgood Marshall:

That’s in the record.

Burton B. Roberts:

From the record sir.

Thurgood Marshall:

Yes, sir.

Burton B. Roberts:

From the record, the basis that we have to arrest him is circumstantial evidence indicating that the person who committed this crime was a tenant in that building.

That this individual, Melvin Morales, was seen outside the premises of the building contemporaneous with the time just before or just after Mrs. Adi Brown was killed that this individual was a narcotic addict.

Had been a narcotic addict for many years, that this individual was a petty thief, that this individual was missing from haunts, that his mother —

Thurgood Marshall:

Now, where in the record is that?

You are — I want to know what he had independently of what you got from Morales or his criminal record?

Burton B. Roberts:

I just stated so what’s in the record.

Thurgood Marshall:

Now, who told the police that he had a long record?

Burton B. Roberts:

They know it sir.

They were questioned.

They were questioned —

Thurgood Marshall:

Well, I mean how did they know that the person, who committed this crime, had a long criminal record?

Burton B. Roberts:

They did not know that the person —

Thurgood Marshall:

I didn’t think they do.

Burton B. Roberts:

Who had committed the crime had a long criminal record sir.

But based on their expertise, the expertise of a police officer in the 42nd squad, a person with narcotic background, a person with a record for petty thefts, a person who needed to make a score in order to support his habit would be more likely to commit a crime such as this in an elevator at three o’clock in the morning —

Thurgood Marshall:

How many?

Burton B. Roberts:

Than the President of the Chamber of Commerce.

Thurgood Marshall:

How many people in the Bronx fit that description?

Burton B. Roberts:

There are many people —

Thurgood Marshall:

How many narcotics addicts do you have in the Bronx?

Burton B. Roberts:

I can’t give you, I can — in my opinion sir, there are about 60,000 narcotic addicts in the city New York but we have our fair share in Bronx County.

Thurgood Marshall:

And fair share of those who commit crimes.

Burton B. Roberts:

And a fair share and save more than 50% of them to make crime.

Thurgood Marshall:

Well, now what probable cause did you have that this was Morales?

Burton B. Roberts:

The evidence at that time —

Thurgood Marshall:

At the time of the arrest —

Burton B. Roberts:

That this is Morales is the facts sir, that he was not seen in his usual haunts for the period of nine days. Subsequent to this crime, that the mother stated at first that he was not in the apartment.

Stated subsequently that he was in the apartment, that a boy saw him sitting on a bench at the time that the crime had been committed and I state further, sir, that when I use the term arrest.

I equate it with seizure, I equate it with detention and I state that the people or the State has the right to seize someone when they have a reasonable basis for believing that that person has information with respect to a crime.

And in equating that with his Fourth Amendment rights, we take into consideration the entire totality of circumstances.

Burton B. Roberts:

The nature of the crime that was committed, the state of the investigation, the individual himself who has been seized whether or not the atmosphere of the station house would be so coercive to such an individual who was ringed wise, that he would not be able to cope or would be so coward, that his statement that he would make after being advised of his rights would not be voluntary.

The — how long he had been detained and certainly, I believe that when one is seized, on the basis that he may reasonably have information with regard to a crime that that detention can only be for a short period of time, rather for a lengthy period of time.

The extent of time that this man was seized as far as his statement concerning his complexity in this crime was concerned, was of 10 to 15 minutes sir.

And based on most facts sir, I believe that under the Fourth Amendment, recognizing that the statements applied by the Fourth Amendment are flexible and variable, that the totality of this situation warrants the action taken by the statement.

Pardon me, sir, Mr. Justice.

Thurgood Marshall:

When was he booked?

Burton B. Roberts:

He was booked, the next morning.

Thurgood Marshall:

When did he — I thought you said he confessed all these 10 minutes after the arrest?

Burton B. Roberts:

He did Mr. Justice Marshall.

Thurgood Marshall:

Why wasn’t he booked then?

Burton B. Roberts:

He was not booked at that particular time because at that time, in the City of New York, there was no 24-hour arraignment and he could not be arraigned until the following morning.

He was questioned —

Thurgood Marshall:

But when was he booked?

You don’t — book in arraignment or they’re different?

Burton B. Roberts:

They are different.

He was not —

Thurgood Marshall:

He couldn’t have been booked that day.

Burton B. Roberts:

He could have been booked that night, he was– I just don’t know.

I just don’t know that of it.

I do know that prior to the time that he would be booked, it is a procedure which we have established that an Assistant DA, who is on felony duty, reports to the scene of the crime in order to interrogate the individual, advise him of his rights even prior to Miranda ascertain whether the police department has also advised this individual of his rights in order to ascertain the voluntariness of the statement which this individual is given.

And that was done on this case.

Warren E. Burger:

Is that in all kinds or just felonies or homicides?

Burton B. Roberts:

That is felonies.

All homicides and also important felonies, that’s been instated in Bronx County before I came up there as Chief Assistant.

Warren E. Burger:

Does this record show in any way how many narcotics addicts lived in the particular building or apartment where this man and the victim lived?

Burton B. Roberts:

There is nothing the record to so indicate.

There —

Warren E. Burger:

Does the record show how large an apartment it is?

How many apartments?

Burton B. Roberts:

The record does show that there was — it was a 21-floor-apartment building and if I may just turn to my — 21 floors, we just don’t know how many units.

Warren E. Burger:

It’s a large, a large apartment?

Burton B. Roberts:

Over a hundred — over a hundred units.

It’s a large apartment house.

Potter Stewart:

What was the defense of trial, Mr. Roberts?

Burton B. Roberts:

The defensive of trial was alibi and the defense to trial was that this confession which was offered an evidence, was not voluntary.

There was no defense that he was unreasonably detained.

In fact, it was the contention of the defense during the course of this trial that this man was a suspect, that this man was thought by these police officers to have committed this crime.

In fact, defense counsel that everything but state that these officers had probable cause or reasonable basis for believing in their own minds subjectively that this individual had committed this crime.

Potter Stewart:

Does the entire trial record in the Court here?

Burton B. Roberts:

Yes sir.

Potter Stewart:

How long?

Burton B. Roberts:

There are two volumes, 1340 pages.

I might, may it please the Court.

In the event, that you do not find that the guidelines established by Terry be adhered to in this case.

Though, I certainly think that the situation of office in McFadden, arresting Terry by seizing him and preventing him from movement because he saw Terry looking into various windows and talking to somebody then, looking in these windows again.

If that is appropriate police action and indeed I do believe it is appropriate police action.

Then certainly in this case where police officers have interrogated numerous individuals where they have a reasonable basis for interrogating this individual Melvin Morales and do interrogate.

And when Melvin Morales has an opportunity to interpose his own free will and within ten minutes, rather he admits and confesses to this crime, I respectfully submit that his Fourth Amendment rights have not been violated.

Warren E. Burger:

How soon after the — or how long before the arrest to put it that way, did the police discovered that he had not been coming to his home to sleep and was not around?

Burton B. Roberts:

I believe it was two days there — it was two days thereafter that they suddenly discovered that he is not —

Warren E. Burger:

Presumably sometime after the person of Morales description was identified as being near the entrance of the building before or after the crime.

Burton B. Roberts:

That is correct sir, Mr. Chief Justice.

Warren E. Burger:

And then, does the record indicate that after that, the police made an inquiry of his mother of other people in the house, in the building?

Burton B. Roberts:

They made inquiry of his mother prior thereto.

They made inquiry of his mother due to the fact they found the brother Snooky in the hallway that same morning.

They did make inquiry of the mother following the description given to them by Everett Roberts on three different occasions and went to the house at three different occasions.

William O. Douglas:

He didn’t live with his mother, did he?

Burton B. Roberts:

The record does not indicate whether he live with the mother.

There is an indication on the part or from the record that he did stay several times a week with his mother.

And according to the mother, he was with the mother on the night of the murder or was in that apartment the night of the murder, where the crime was committed.

Burton B. Roberts:

And this evidence was known to the police, prior to the time that they took Mr. Morales into custody or when he surrendered.

Warren E. Burger:

Did the mother in any testimony pinpoint how she knew that he was in her apartment, in the family apartment at 3:00 AM or whatever the time of this crime was?

Burton B. Roberts:

She stated that he was sleeping on the dining room table at that particular time and that when the police arrived at the apartment, he was there, sleeping on the table and this is refuted by one of the detectives, I believe Detective Teccera, who testified that he walked through the apartment and actually walked through this room and did not observe anyone sleeping on the dining room table.

Hugo L. Black:

What did the alibi show about where he was during the time of the murder?

What did the alibi evidence, you say, could’ve been alibis?

Burton B. Roberts:

The mother —

Hugo L. Black:

What was that alibi, or where was he testifying that he was at that time?

Burton B. Roberts:

Mr. Justice Black, Mrs. Morales testified here that he was sleeping on the dining room table.

Hugo L. Black:

During the time of the murder?

Burton B. Roberts:

During the time of the murder and during the time that the — during the whole evening, he was there and that during the time that the police came to interrogate the Morales family in a particular, Snooky, the brother, he was sleeping on the dining room table.

That is on the record.

Warren E. Burger:

And you say that the detective testified that when he went through the apartment, he did not see Morales, anywhere in the apartment?

Burton B. Roberts:

That is correct, Mr. Chief Justice.

Warren E. Burger:

And what time did the police go through the apartment?

Burton B. Roberts:

I would say about 4:00 – 4:30 in the morning, Mr. Chief Justice.

Warren E. Burger:

And then he was absent from that apartment for nine or ten days thereafter?

Burton B. Roberts:

According to her, he came to the apartment and didn’t say any further.

Warren E. Burger:

According to whom?

Burton B. Roberts:

According to Mrs. Morales, Mr. Chief Justice.

According to the detectives, they did not see him at the apartment.

They did not see him at his usual haunts.

And Mrs. Morales stated that on the night in question, on the night or the early morning of October 4th Mr. Chief Justice, that the detectives did not enter the apartment.

This is refuted by the detectives who said they did enter the apartment and went through the apartment, and did not see Mr. Morales asleep on the dining room table.

This has to do with the alibi defense, primarily, doesn’t it?

It does.

This conflict.

I — with respect to what’s really an issue here, as I understand it, that is the Fourth Amendment claim.

This — the mother testified that she telephoned her son when the police told her that they would like to interrogate the son, is that correct?

That is correct, Mr. Justice Stewart.

Potter Stewart:

And where was he when she telephoned to him?

Burton B. Roberts:

The record does not indicate where he was at that time, Mr. Justice Stewart.

Potter Stewart:

Is — he did not make his home earlier and all the time permanently with his mother, did he?

Burton B. Roberts:

According to the record, he lived there sporadically.

He live there two or three times a week and then lived elsewhere.

Potter Stewart:

And also visited her in her beauty shop which was I gather in the vicinity, is that right?

Burton B. Roberts:

That is correct, Mr. Justice Stewart, in the Bronx.

Potter Stewart:

How close, how far away from the apartment house was the beauty shop?

Burton B. Roberts:

The record does not so indicate.

Warren E. Burger:

I should think, Mr. Roberts, that when the police came, the police detectives went through the apartment and compared to that his absence with the mother’s statement that he had been there.

This might have put them on notice of the suspicious circumstance relating to Morales.

Burton B. Roberts:

Mr. Chief Justice, they were unnoticed.

Warren E. Burger:

They were — you suggest that on this record, they had a basis even that as early as that night to suspect that Morales may have been one of the people involved or might be the person involved?

Burton B. Roberts:

Mr. Chief Justice, on that night, they did not know that he had been there.

It was only subsequently when the mother stated that her son Melvin was in the apartment, that they were able to piece that together.

Warren E. Burger:

That’s when they began to make inquiry about seeing him, was it?

Burton B. Roberts:

They had made inquiry about seeing him prior thereto but they had made inquiry to the mother — as soon as they made inquiry to the mother about seeing him, she then alibied and stated that he was in the apartment.

He wasn’t outside the apartment.

He was here sleeping on the dining room table.

May it please the Court?

In the event that this Court finds that there was a violation of the Fourth Amendment rights of this defendant, I respectfully submit it was attenuated.

Warren E. Burger:

We’ll continue after lunch.

Burton B. Roberts:

Mr. Chief Justice, may it please the Court.

As to attenuation in the event that this Court finds, there was an unreasonable seizure.

In Miranda, it was discussed the taint of the coercive atmosphere of the station house.

In the Miranda case decide that this could be removed by a full and fair disclosure of defendant’s rights to silence and to counsel.

By identical reason, we contend here that the confession was not a product of illegal custody but was the result of this man interposing his own free will and confessing to a detective of his own choice, Detective Carol.

He refused to talk to Detective Duff but insisted on talking to Detective Downe and Detective Carol, and when Detective Carol asked him whether he believed in God, and asked him whether or not between God and himself that he commit this crime, he stated that he did.

And I submit that there seems to coincide with the State’s theory that this was a voluntary surrender.

The fact that shortly after he was brought to the station house, he confessed to this crime within 10 minutes, after he was questioned by Detective Carol.

In conclusion, the people submit that the seizure was proper under the Fourth Amendment, that this man was seized not based solely or primarily on the fact that he was a narcotic addict but based on the fact that he was present in the vicinity at the time the crime was committed.

Burton B. Roberts:

But a false alibi had been given for him by his mother that he was not found in the usual haunts, that he had a reputation of being a petty thief, who had numerous convictions, and was known to have numerous convictions by the detectives assigned on this case.

Three, I respectfully submit that there was a voluntary surrender in this case and therefore the Fourth Amendment.

They not even come into play with regard to the fact situation in case known as People of the State of New York against Morales.

I would this ask this — Thank you very much.

Warren E. Burger:

Thank you, Mr. Roberts.

Mr. Farrell, you have five minutes left.

Richard T. Farrell:

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

Just very briefly, I like to return the Court’s attention to two items of testimony that appear on the record.

In spite of the intricate complex of facts upon which the police officers might have operated to seize Morales, we have summarized that our brief on pages 13 and 14 and over the 15th, the facts upon which they actually did operate.

They actually operated on a soonest of evidence, so slim that one police officer when asked whether Morales is a suspect or not, was led to this remark.

He said, why is — it was asked, was Morales a suspect?

And after they have been given a lead by the trial judge, the officer said, I concur with the judge everybody is a suspect.

The reach of the police officers here is not limited to Melvin Morales, but these petty officials to borrow I was wrong as from James Otis to speak in 1761.

The police officers here, these petty officials have it in their power to determine, who is the suspect and we know now from the police officer, who is the suspect?

It is thee and me Your Honors.

And the second point to which I would like to address the Court’s attention was that the attack on the admissibility of Morales’ confessions is not an attempt to find the way around otherwise, overwhelming proof of guilt.

Absent Morales’ confessions, there is nothing to tie him to the crime committed in this case.

As a matter of fact to close that, it is clear that he was worrying on the night in question had been turned on a cleaning establishment on October 5th?

To whom that the claiming stab wounds found no traces of blood on that clothes — on those clothes and the police laboratory in examining those clothes found no traces of blood.

If Your Honors look at the pictures in the record from the scene of the crime, there is blood on the floor, there is blood on the wall, there is blood on the door.

Morales’ clothes showed no signs of blood and it is the people’s own testimony that points to these clothes as the clothes being worn by Morales on the night this crime was supposed to have been committed.

The only item of clothing missing were his shoes but his trousers, if you look at the pictures in the record, Your Honors, how his trousers could’ve escaped being covered with blood and door house.

31-stabwound victim or alleged victim could not have bled on him.

It trenches upon almost a lack of proof of guilt beyond a reasonable doubt, absent these confessions.

And Your Honors, as I think the Court will understand our position is that the confessions on the produce of an unlawful seizure and must therefore be barred from use on this trial.

Thank you Your Honors.

Warren E. Burger:

Thank you Mr. Farrell for your submission.

Thank you, Mr. Roberts with yours, the case is submitted.

Burton B. Roberts:

Thank you Your Honors.