Orozco v. Texas

PETITIONER:Orozco
RESPONDENT:Texas
LOCATION:Circuit Court of Somerset County

DOCKET NO.: 641
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 394 US 324 (1969)
ARGUED: Feb 26, 1969
DECIDED: Mar 25, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 26, 1969 in Orozco v. Texas

Earl Warren:

Number 641, Reyes Arias Orozco, petitioner versus Texas.

Charles W. Tessmer:

Mr. Chief Justice, —

Earl Warren:

Mr. Tessmer.

Charles W. Tessmer:

May it please the Honorable Court.

I’m Charles Tessmer of Dallas, Texas.

I represent Reyes Orozco, the petitioner, who stands convicted of murder upon circumstantial evidence by jury in the criminal District Court of Dallas County, Texas, with a penalty assessed that penal servitude of 10 years.

This is a classic case, presenting a violation of the petitioner’s rights under the Fifth, Sixth, and Fourteenth Amendments of the Constitution.

In this case, the petitioner was the prime murder suspect, had been so for four hours.

At the time of his interrogation, he was under arrest, whether legal or not is not important.

He was surrounded in his bedroom by four armed officers.

He was either asleep or had just been awakened when the officers entered without his invitation or consent.

In this case, no new trails in the criminal law need be blazed by this Honorable Court.

In this case, no interpretation of prior case law need take place by this Honorable Court.

What we have here is a simple refusal of the Texas court of criminal appeals to follow this simple words and cautions of Miranda, Escobedo, and cases involving that situation.

The facts in this case are quite simple.

The deceased was found dead at around midnight at 12:30 by a uniformed policeman.

A crowd had gathered.

He was slumped over the wheel of a car at a café.

After some investigation, the detectives learned that there was a possible eyewitness named Mary Matas.

The police found Mary Matas, arrested him, took him downtown to point out where a woman had been led out of the car who was present at the scene also.

Then, they have Mary Matas direct them to Lemmon Avenue, some two or three miles from the center of the City of Dallas and there Mary Matas pointed out the house where his friend, the petitioner lived and the car that he was in that night.

Then, the officers proceeded back downtown, put Mary Matas in jail for investigation of murder, and then after this belated attempt of some four hours, he went back to the house with three other officers, an uninvited entry was made, except that there was an invitation by an unidentified woman, and of course no consent there under Amos, Stover versus California where federal standards apply.

What we have here is a simple case of this, the minute that Detective Brown got into their house, he admitted that when he said, what is your name and petitioner said, Reyes Orozco that he was under arrest.

He was the prime suspect.

This was no general inquiry at the scene of an unsolved crime, where threshold statements may be used or even res gestae and that the State of Texas makes no contention that we have here in threshold a statement or admission of guilt, or that we have a res gestae statement or whether Miranda applies there or not.

Here, we have a blatant violation of petitioner’s rights.

What happened?

Earl Warren:

What time in the night was this?

Charles W. Tessmer:

4:30 a.m. in the morning, Mr. Chief Justice.

Here’s what happened to petitioner.

Charles W. Tessmer:

Mr. Brown said, what is your name?

Orozco.

Where you at the El Farleto Café last night, the murder scene?

Do you own a gun?

Yes.

Where is that gun?

And Brown himself admitted that it took two times of questions before petitioner said I will show you, or proceeded to show the officers where the gun was in the washing machine and another part of the house.

Now, those are the simple facts.

Now, what were the fruits of this interrogation?

Simply this, if petitioner had said I’m guilty, I did it, the facts develop from this interrogation were more damaging in this circumstantial evidence case than a direct confession signed, sealed, under oath.

What do they get from this interrogation?

An admission, he was at the murder scene.

Four hours after the officers knew there’d been homicide.

Four hours after they knew this was the prime suspect, his own friend put him at the scene.

His own friend pointed the house out, the car.

Secondly, do you own a gun?

Yes, I do.

No real admission there.

Many people owned guns and have a right to, in Texas in their own home.

Byron R. White:

I take it you don’t object to the arrest.

Charles W. Tessmer:

I don’t contend that it’s illegal because the grant of certiorari was not on that basis, although I think that his Fourth Amendment rights were surely violated by this arrest, and certainly —

Byron R. White:

With no probable cause?

Charles W. Tessmer:

Yes, Your Honor based upon Aguilar against Texas, Giordenello versus United States, and Barnes against Texas, holding that Miranda arrest in search.

Byron R. White:

We’re proceeding in this case on the assumption that the arrest was valid?

Charles W. Tessmer:

I have no — I concede the dimensional difference for their argument concede as valid, although there are some questions under Texas law.

Our laws are more lenient than the laws of most states, requires a critical person to say that you have committed a felony and further that you’re about to escape.

This man was arrested at home in bed, a very unlikely situation, with no warrant, no search warrant (Voice Overlap).

At any rate, we find the product of that interrogation was simply this, the admission he was at the scene of a murder, the admission he owned a gun.

After being questioned of two times about where the gun was, he finally showed to Detective Brown where it was.

Now, what was the fruit of this interrogation?

Charles W. Tessmer:

The murder weapon possibly? Ballistics testimony was offered at the trial showing that the body from the deceased, the bullet from that body match test bullets fired from that gun.

Potter Stewart:

And just what was introduced in evidence at the trial?

Charles W. Tessmer:

The testimony of this friend concerning the altercation, leaving the question open as to whether petitioner really killed the man, or his lady friend who was not used as a witness who was standing there.

The witness actually didn’t see the shooting but was closed, and they jumped in the car and he saw Orozco with the gun, but so the woman was there too and wasn’t used at the trial.

That’s why the court charged on circumstantial evidence, I assume.

Now, —

Potter Stewart:

So, what was — what resulting from —

Charles W. Tessmer:

From this interrogation?

Potter Stewart:

— from this interrogation was used at the trial (Voice Overlap)

Charles W. Tessmer:

The damaging admissions, I was there at the murder scene.

The fact that his car was identified, the he owned a gun, that the gun was produced and introduced an evidence as a state’s exhibit, and further that the gun was used to condemn him with scientific evidence, ballistics, test shots fire to that gun according to the expert introduced at the trial matched the murder bullet removed from the deceased.

Potter Stewart:

The gun was introduced an evidence?

Charles W. Tessmer:

Yes, Your Honor.

Potter Stewart:

And the testimony of the arresting officer?

Charles W. Tessmer:

Yes, Your Honor, all of the interrogation and bombing admissions made at 4:30 in his own bedroom.

Potter Stewart:

What?

That his name was what — that his name was Orozco?

Charles W. Tessmer:

Orozco, and then the officer —

Potter Stewart:

And that he owned the gun and that he’d said his gun was in the washing machine that they are going to find it there.

Charles W. Tessmer:

And that he had been at the scene, the El Farleto Café (Voice Overlap)

Potter Stewart:

— eyewitnesses have put him at the scene —

Charles W. Tessmer:

Already.

Potter Stewart:

Yes.

Charles W. Tessmer:

Already.

Potter Stewart:

With the gun in his hand?

Charles W. Tessmer:

With the — no.

Potter Stewart:

Not?

Charles W. Tessmer:

Not with the gun in his hand, the gun in his hand after the shooting.

It was dark.

Two people were in an altercation with the deceased or could have been the petitioner and this — the woman Joan Perez, who was not a witness at the trial.

Charles W. Tessmer:

I think that’s why the trial court charged on circumstantial evidence.

Potter Stewart:

Circumstantial evidence.

Hugo L. Black:

But the record show why she on the witness?

Potter Stewart:

No, Your Honor.

She was evidently an eyewitness who could’ve elucidated the transaction for both sides.

Now, we rely without any further discussion upon Miranda and the guidelines which are so simple set out therein and Escobedo.

Miranda had to do with — itself had to do with interrogation in a jail or in a police station.

Charles W. Tessmer:

Yes, Your Honor, and I think here, this man was a surely in jail at that moment when they.

Potter Stewart:

He was in his own bed in his own home?

Charles W. Tessmer:

But he was surrounded by four officers at 4:30 in the morning who had known about him for four hours.

And further, they had time to take the man back to see and come back no warrant.

They didn’t really believe he’s going to escape or let him go in that house when it was first pointed out.

But be that as it may, here, unless Miranda is to be meaningful and unless it applies to this situation where the man is clearly under arrest, the police could delay taking him to the station house and say we’ll he’s in own home and we can question him there without the warnings, and thereby keep him ignorant of his Fifth and Sixth Amendment rights under the Constitution.

I think this Court would agree with me that these rights belong to the guilty as surely as to the innocent, to the illiterate, the naive and to the organized criminal who knows his rights and doesn’t need then explained.

Potter Stewart:

Your position is that the police should have done — that the Constitution required its police to what?

Charles W. Tessmer:

That they caution him of his right to counsel.

Potter Stewart:

And send for a lawyer for him?

Charles W. Tessmer:

Or further that he need to answer no questions mainly.

Byron R. White:

Or arrest him or take him?

Charles W. Tessmer:

Or take him to the police station after they’ve arrested him instead of proceeding with the interrogation (Voice Overlap).

Potter Stewart:

What if he’d said, my name is John Smith?

Charles W. Tessmer:

Well, then I think —

Byron R. White:

Or that, I wasn’t at the proceeding?

Potter Stewart:

Yes.

Charles W. Tessmer:

Well then, you would have an exculpatory statement which if it later turned out to be true, would be as damming against him at his trial as if he said I’m guilty, probably more so fabrication.

Byron R. White:

You might rather arrest him?

Charles W. Tessmer:

This is true, but with an eyewitness who have described his car sitting in the driveway.

Byron R. White:

It might have been that he was at the scene of the crime.

Charles W. Tessmer:

This is true, I concede that.

Byron R. White:

At least you take him to the police station anyway.

Charles W. Tessmer:

Well Your Honor, all I can say is that once he said what his name was, the way he went and further, they though enough about him to return twice to a scene to order additional assistance, a squat of armed police officers too to help with the arrest.

They’ve made up their mind to take him under arrest.

Potter Stewart:

As you say they — as you emphasized many times, they — he was suspected of having just killed the man in cold blood, wouldn’t he?

Charles W. Tessmer:

Yes, no question about —

Potter Stewart:

It is not unreasonable to ask for a little additional help on your arresting somebody like that.

Charles W. Tessmer:

No question about their knowing that they plan to use any admissions he made as damaging evidence at his trial.

Now, I point this out to this Honorable Court that, this Court I believe said quite lucidly in the Miranda that or in Escobedo that if he’s deprived of his freedom of movement in any substantial way, then the cautions must be given whether he be in the county jail, in his house, or in a taxi cab where he’s being questioned or in a squad car on the way downtown, unless some valid exception such as the threshold statement or res gestae which this is four hours later questions no spontaneity there.

I think Professor (Inaudible) would agree that this wasn’t res gestae.

The Governor of the State of Texas doesn’t argue that at all.

Now, I would like to point out further that the State of Texas simply argues this in their brief, and I think it’s all we could argue that he was in familiar circumstances or surroundings at the time he was interrogated.

Where they familiar?

Boarding house, 4:30 in the morning, four armed officers around his bed and he’s just been awaken from sleep, hardly, a familiar place not subject to police domination.

I can think of — I can concede or think believe that the police station would be less dominating than your own bedroom under those circumstances at 4:30 in the morning, surrounded by four armed officers, no cautions, no warnings, nothing.

I think that’s the State of Texas main argument.

Secondly, they wish to elucidate and use the doctrine of fictitious waiver that although Mr. Barkley, the trial counsel objected and objected, and as for voir dire that he didn’t draw the trial judge a motion picture of Miranda.

Now in answer to that, I would point out that we have had since Miranda and since it became effective, two statutes in the Texas Court of Criminal procedure that go further than Miranda, and require more warnings.

They are namely Article 15.17 and Article 3022.

15.17 requires that he be taken before a magistrate as soon as possible, and there given the cautions, then a constitutionally admissible, admission or statement may be used.

Article 3022 provides that the officer who takes the statement must repeat and give the same warnings, and they go beyond Miranda.

So, there’s no argument that can reasonably be made that the trial judge didn’t know what Mr. Barkley’s talking about.

I think he certainly presumed to know the import of Miranda and the statutes.

Now, what do I mean by fictitious waiver argument?

Many decisions in the Court of Appeals for the Fifth Circuit have applied the doctrine and refused to accept it to racial discrimination in the selection of juries.

Most states required to make the motion beforehand, before you select the jury to quash it, and put in evidence.

Numerous decisions hold that it maybe may just laid his own appeal.

You have here a constitutional right, a constitutional violation and therefore, state procedural grounds may not washout that right, eventhough it’s admirable to have state criminal process move quickly, but where you have justice on one side and constitutional rights, now this magnitude unknown the other the question of whether you timely objected or you were just a little late, or you didn’t grow a motion picture of the objection, I think that the decision in O’Conner versus Ohio is recognized that the constitutional right may not be waived on that basis, also in the decision of Fahy versus Connecticut where there was a violation of the petitions Fourth Amendment rights and he took the stand and admitted certain things, still the finding of the paint in the garage where he marked the swastika on the synagogue was a right he could complain about.

Hugo L. Black:

Did he object to any of them?

Charles W. Tessmer:

I don’t believe so.

Now, I would further point out that this Honorable Court —

Hugo L. Black:

I didn’t see any objection at all.

Charles W. Tessmer:

He continued to object throughout in the record.

He did not say Miranda versus —

Hugo L. Black:

Did he object to the introduction of the statements?

Charles W. Tessmer:

He continued to object to all of the interrogation.

In the record, it’s in the appendix Mr. Justice Black.

Hugo L. Black:

I was looking at the appendix.

Charles W. Tessmer:

We have it there, I’m certain I read it, reread it this morning, a careful reading was shown on the voir dire.

Hugo L. Black:

I believe the State says he did not object.

Charles W. Tessmer:

The State says that he didn’t object specifically, no Mr. Justice Black.

And they cite 4009 of the Texas Code of Criminal Procedure.

They do not cite 400913 which allows the Texas Court of Criminal Appeals to consider any constitutional error or any error in the interest of justice.

Now, the answer to this argument simply is this, that Texas court did consider, and the majority opinion written by his Honorable Judge Woodley.

They did discuss Miranda, and they sought to rely upon decision where you asked the suspect, what do you have in a truck?

And he says, cigarettes, there, you have a search after that, not Miranda protected on the street.

The man wasn’t a suspect, that’s the answer to that.

Thurgood Marshall:

Isn’t also true that the trial judge when he asked for the board, they cut him off and he couldn’t continue his objection?

Charles W. Tessmer:

He certainly did cut him off, overruled him and would not allow him a second voir dire of the witness.

And Mr. Justice Marshall, all of these took place in the presence of the jury, which of course as lawyers, we all know can be very damaging where you are asserting constitutional rights in front of layman who don’t understand there are certain rules to be availed.

Now, I would further point out that in our petition for the writ, our supporting brief, we point out the Wong Sun decision, the Silverthorne Lumber Company versus U.S. and decisions of that appeal which present the fruit of the poison tree doctrine and certainly what came of this illegal interrogation, damaging admissions, I was at the scene of a murder, I want a gun, the gun itself and acting out a nonverbal confession in getting the gun.

It’s like a reenactment of a murder scene by suspect, and the ballistics’ evidence which follow.

So, I think that in view of the circumstances of this case, we simply have here a simple failure of our court of last resort of Texas to follow the simple words and guidelines set down by this Honorable Court.

We therefore respectfully submit that this conviction should be reversed and a new trial awarded.

In conclusion, I can think of no other case that presents a clear picture of the fictitious waiver doctrine as used to washout constitutional rights by some courts than Loubet against Bennett 365 F. 2d 695 of the Court of Appeals for the Fifth Circuit involving a state prosecution in the State of Texas.

If there are no questions, I have nothing further.

Earl Warren:

Very well.

Thank you.

Mr. Zwiener.

Lonny F. Zwiener:

Mr. Chief Justice and may it please the Court.

I’m Lonny Zwiener, representing the respondent.

I’m an Assistant Attorney General of the State of Texas.

Lonny F. Zwiener:

I agree with counsel for the petitioner.

I think the main question in this case involves the interpretation of Miranda and what that holds.

I would like to point out initially that —

Potter Stewart:

You agree with him?

Lonny F. Zwiener:

— that it involves a Miranda question, and I don’t —

Potter Stewart:

You don’t agree completely with him?

Lonny F. Zwiener:

No, sir, I just go that far.

As a Miranda I think is decisive of a decision in this case.

I would like to initially point out that the entry which he condemned that at least mile they enter the rooming house, the record does show that the police were admitted by a woman.

This was not explored for either by the defense or the prosecution but apparently they did not force an entry into the rooming house.

Earl Warren:

Apparently, they did not what?

Lonny F. Zwiener:

Did not force an entry into the rooming house.

They — this was a rooming house were petitioner was located.

Apparently, he was a boarder there, although the record is not clear on that point.

What the record does show that a woman admitted the officers to the rooming house.

Thurgood Marshall:

It was 4 o’clock in the morning?

Lonny F. Zwiener:

Yes, sir.

Thurgood Marshall:

And how many officers were there?

Lonny F. Zwiener:

There were two detectives that had done the investigatory work and they were joined by two policemen at about the time they arrived at town —

Thurgood Marshall:

So at 4 o’clock in the morning, there are four police officers in the house and they were voluntarily admitted?

Lonny F. Zwiener:

Well, I would — I say the record does not show this Mr. Justice Marshall —

Earl Warren:

Who is the woman?

Lonny F. Zwiener:

I would say that this is exactly what happened.

I think they were admitted by the landlady.

Thurgood Marshall:

Voluntarily?

Earl Warren:

By the landlady?

Lonny F. Zwiener:

Yes.

Earl Warren:

Do you think she has access to everybody’s room at 4 o’clock in the morning?

Lonny F. Zwiener:

No, Your Honor, I don’t like that contention, I certainly don’t like it.

I was replying really to the suggestion or it may, I may have misunderstood the counsel that there was something perhaps the improper about the initial entry.

Lonny F. Zwiener:

Now certainly, she does not — would not contend that she can permit the officers to search or enter apartments in the house or —

William O. Douglas:

Do they use search warrants in Texas?

Lonny F. Zwiener:

Yes, Your Honor.

William O. Douglas:

Somebody showed me some statistics the other day, I don’t if they’re genuine or not showing that the percentage is very, very, very small that the conventional way is to just go in.

Is that true?

Lonny F. Zwiener:

Your Honor, I don’t think that that is true.

As a matter of fact, we have several cases pending before this Court now.

I will not mention their names where there are far too many search warrants.

Potter Stewart:

You got a form of search warrant down there you use, don’t you in all cases?

That’s the impression —

Lonny F. Zwiener:

No, however, there are some, some counties have been inclined to use form of search warrants.

Unfortunately, the case that I alluded to, this Court denied certiorari in the case involving a type of search warrant and the officer seized on this is the — a stamp of approval that it run with that type ever since.

Potter Stewart:

Yes.

Thurgood Marshall:

When you said no point of entry (Inaudible)?

Lonny F. Zwiener:

Well, I don’t know, Your Honor.

Earl Warren:

Well Mr. Zwiener, I understood you say just a moment ago that you wouldn’t contend that the landlady had the right, anytime, to admit people to the rooms of her boarders at 4:30 in the morning.

What right did she have to do it here?

Lonny F. Zwiener:

Well, Your Honor, I was speaking to the initial entry to the house.

Actually, I don’t think that this is the critical.

Earl Warren:

Well, I don’t care whether it’s critical or not.

What right did she help to admit the police to this man’s room?

Lonny F. Zwiener:

Well, Your Honor, I don’t know what right did she have, Your Honor.

Earl Warren:

And if you don’t know what right, she probably had no right?

Lonny F. Zwiener:

I would, might go so far as to say that Your Honor.

Earl Warren:

Very well.

Lonny F. Zwiener:

I’m sorry that I got off in the entry because as before, I think counsel and I agreed that the entry and the arrest is not really the controlling thing.

I do think there were certainly probably cause to make the arrest to this particular juncture (Voice Overlap).

Earl Warren:

And there was — there was an arrest made at this juncture?

Lonny F. Zwiener:

Yes sir, and this of course is what gives us perhaps the fact that there was probable cause, raises into the state’s focus, this Miranda problem because certainly (Voice Overlap) it had focus on a certain man that was at this café.

William O. Douglas:

When you say at this juncture, you mean when the man was in bed?

William O. Douglas:

He was arrested when he was in bed?

Lonny F. Zwiener:

Yes sir, he was.

But what I was saying that the fact that there was probable cause, meant it suspicion, had focus on and this brings into play Miranda even more strongly (Voice Overlap).

Potter Stewart:

Well as I read the appendix, the — he was arrested after he stated his name?

Lonny F. Zwiener:

That’s true.

Potter Stewart:

Up until then, they were just — they didn’t know he was, isn’t that right?

Lonny F. Zwiener:

Well, that is true.

This (Voice Overlap)

Potter Stewart:

When he said his name and the officer said at that point he’s under arrest because they had evidence to the man by that name that just shot and kill somebody, is that right?

Lonny F. Zwiener:

That’s true sir.

William O. Douglas:

But you — you take the record as Judge Morrison rendered?

There wasn’t arrest?

Lonny F. Zwiener:

I beg your pardon?

William O. Douglas:

You take the record as your Judge Morrison took it?

Lonny F. Zwiener:

Well, —

William O. Douglas:

Not necessary in the final result but in the terms of their being an arrest?

Lonny F. Zwiener:

Your Honor, I don’t know.

The police officer did state that after he identified himself, that he was — he considered that he was under arrest.

I’m not sure that that’s the term he did.

What the police officer says, I think the court can look forth into the facts and perhaps judge that not only is the name necessary but when you’re on the scene of the crime and so forth.

But actually —

Byron R. White:

You’re not conceding that there was not in the record — I mean you’re not contending that there was not an arrest then, are you?

Lonny F. Zwiener:

No, no.

Byron R. White:

Your conceding that there was —

Lonny F. Zwiener:

Yes, sir.

Byron R. White:

As soon as he spoke his name?

Lonny F. Zwiener:

I say the police officer so testified.

I think there was —

Thurgood Marshall:

Well, do you think that if they had said what is your name, you’re under arrest, carried him to the police station, they would have had to give him the Miranda rule?

Lonny F. Zwiener:

I would say yes, it would be required with this qualification which is the point that the state relies on in this case.

Lonny F. Zwiener:

It’s a question of waiver.

This is our main contention.

I do not — we did mention in our brief that this was not distinguishable from Miranda and that he was not at the police station.

But really, our principal contention is that there was a waiver here.

This was in January.

The arrest was in January 1956.

This case was tried in August of 19 — did I say 1956?

I meant 1966 if I said 1956.

The case was tried in August of 1966.

Miranda was handed down in June of 1966.

And what we’re saying is that lawyer, that defense lawyer had the advantage of Miranda when this case was tried in August, an advantage which the police officers did not have in January of 1966.

They didn’t know about Miranda at that time.

And we say —

Potter Stewart:

When you’re talking about the waiver, you’re not talking about the waiver by Mr. Orozco at that time of the interrogation?

Lonny F. Zwiener:

No sir, I am not.

I’m talking about —

Potter Stewart:

You’re talking about waiver at the trial by his counsel?

Lonny F. Zwiener:

That’s what I’m — Yes, sir, I am.

And I would like to distinguish O’Connor versus Ohio, a case that I use to cite until this Court sent it back to or it went back to Ohio and came back up here that there could be a waiver of constitutional rights.

O’Connor, I believe this Court said that if the right was unknown to defense counsel, defense counsel could not be expected urgent — this constitutional right, later define.

In this case, the constitutional right was defined some two months prior to this trial.

And we’re saying that counsel did — did make objections but he seemed to be objecting on an entirely different basis than Miranda.

Thurgood Marshall:

Well, he was cut off, wasn’t he?

Lonny F. Zwiener:

No, I don’t think he was Your Honor.

He was given the witness on voir dire and he examined him on voir dire.

And then at a later point, after the State was taking him, had the witness back, he made objections and he said “Well, can I have him in voir dire?

Not at this time or something like this.

Earl Warren:

Where do we find that colloquy in the appendix?

Lonny F. Zwiener:

Now, you’re referring to exactly what Your Honor, what statement —

Earl Warren:

The objection, any objections that he made to the introduction of this kind of testimony.

Hugo L. Black:

15 to 17 —

Lonny F. Zwiener:

At page 17, is I would call it a cumulative objection.

Around in the middle of page, Mr. Barkley, “alright now at this time we’ll object to any testimony” and with reference to the conversation, it then goes on to relate his objections.

He says it failed probably — a proper predicate.

He objected to the amount of the arrest, and that the — whatever this means, it failed to comport with the court of grounded procedure and that the prosecution fail to show why he did not get arrest or search warrant.

Suppose you run into difficulty though in that argument that the fact of the case how the court satisfied Miranda cases.

Lonny F. Zwiener:

Well Your Honor, I would be less than candid if I didn’t think they were difficulties in this case.

Certainly, there are.

So that’s (Voice Overlap) yes, sir?

(Inaudible)

Lonny F. Zwiener:

I beg your pardon, sir?

But what’s your point out (Voice Overlap)

Lonny F. Zwiener:

No sir, I don’t think that it necessary (Voice Overlap)

Potter Stewart:

Your appellate court of your state could have said this federal question was never raised and therefore —

Lonny F. Zwiener:

Never properly raise.

Potter Stewart:

Never properly raise and therefore we will not consider it and that might have been a perfectly good ground.

But in fact, they did consider Miranda and Escobedo and everything else.

They did consider the federal question and pass on it.

So, doesn’t that as Justice Harlan says (Voice Overlap)?

Lonny F. Zwiener:

Well, I would not concede that it would.

I think that if I have been right the opinion, I would have written on a different basis, I will distinguish Miranda differently.

It possibly would present a case for a reinterpretation of the law by the court, but I don’t think that it necessarily does, was it point out.

Potter Stewart:

Your Texas Appellate Court considered and passed on the federal constitutional question, is that correct?

Lonny F. Zwiener:

I’m not — I hate to be evasive with the court.

I — and I hate to make this statement that I’m going to make too because I would hate for the — this Court’s right to opinion with the Assistant Attorney General is not quite sure what basis.

The Court of Criminal Appeals decided this case.

But in fairness, I am not exactly sure how they arrive at their decision.

I think they just decided that — well, I have some difficulty.

I trust that these words will not come back in the opinion, but I do have difficulty rationalizing their decision.

Actually, the majority ended dissent.

Lonny F. Zwiener:

What I do nevertheless, I do urge that counsel should have pointed out with some particularity, what he was meaning if had the Miranda in mind at the time of the state trial, what it was that he was objecting to so that the trial court could have been apprised with the Miranda question and this matter could be — could have been corrected and cured at that time because I think the case could have been tried in one without the use of this testimony and actually without the gun that was seized at the rooming house, and had that objection been made, had that trial court had the opportunity to past on it, then perhaps that they say the conviction would have been had in this matter, will not have gone this far.

Can you distinguish Miranda?

Lonny F. Zwiener:

Well, this was not in a police station, Your Honor.

Earl Warren:

Could not what?

Lonny F. Zwiener:

This — the interrogation did not take place in the police station.

In candor, I cannot distinguish Miranda.

That’s the reason I’m arguing waiver.

Thurgood Marshall:

Aren’t the police officers are part of the police station?

Lonny F. Zwiener:

No, I wouldn’t say that Your Honor.

I suppose by definition we could make them — they could make any little place if they happen to be a part of the police station, but I would not say it.

Thurgood Marshall:

Well, have you ever seen a police station without armed policemen?

Lonny F. Zwiener:

A police station?

I don’t know that I have, Your Honor.

Thurgood Marshall:

Yes, I doubt it.

I for one can see very little difference between four police officers armed and holding a man in complete restraint in a police station, a precinct, the middle of the street, the middle of Madison Square Garden, or in his own bedroom.

I think it’s the restraint and the policeman that makes it necessary to give the warrant.

Lonny F. Zwiener:

Well, I would say that I don’t agree with all of that because I would say if you’re in restraint with members of your family, members of this Supreme Court (Voice Overlap) it would make a big difference on the coercive present pressures that the police would apply (Voice Overlap).

Four policemen had a man in custody in this Court.

I don’t think he would be inclined to confess. (Voice Overlap)

Thurgood Marshall:

I don’t think I meant in any of my hypothetical because there was any family around.

Lonny F. Zwiener:

Well Your Honor, you were saying wherever (Voice Overlap) in this particular case, I don’t see much difference.

Thurgood Marshall:

Right, because he was no family there.

Lonny F. Zwiener:

That’s true.

Thurgood Marshall:

He was in a rooming house.

So, don’t you agree that if he had said to the judge I object to this and cite Miranda verbatim with the citation that you wouldn’t have any case?

Lonny F. Zwiener:

Yes, sir, I would say so.

Thurgood Marshall:

You agree?

Lonny F. Zwiener:

We’re arguing waiver, that’s our principal contention here that the trial court should have had the opportunity to pass on the Miranda question at that time as so to — so that this issue would not be litigated at this point.

If there are no other questions, thank you.

Earl Warren:

Very well.

Earl Warren:

Mr. Tessmer.

Charles W. Tessmer:

By way of brief rejoinder, the record is not clear on the identity of the woman who admitted the police.

There was no evidence that she was landlady or whatever the case may be.

Further, I would like to point out briefly that when the objections were made numerously over some seven pages of the record by Mr. Barkley, he used the word “predicate” and predicate means what must be shown prior to using the evidence authenticating a document, proving up a letter.

Now certainly, any trial judge is presumed to know that a predicate for admissions these damaging must be a compliance with the caution.

Further, had there been no objection at all by trial counsel, then I think the only waiver that you could you have in that situation would be that it was concurred in by the accused or at least it was trial strategy.

In Henry versus Mississippi, the first submission, this Honorable Court held that Fourth Amendment rights weren’t necessarily waived by failure of the Mississippi attorney to object, and I believe the case was remanded for a hearing to determine why he failed to object to an illegal search and seizure.

If there are no questions, thank you, Your Honors, very much.

Earl Warren:

Very well.