Payton v. New York – Oral Argument – March 26, 1979

Media for Payton v. New York

Audio Transcription for Opinion Announcement – April 15, 1980 in Payton v. New York
Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Warren E. Burger:

We’ll hear arguments next in Payton against New York and Riddick against New York.

Mr. Hellerstein, I think you may proceed when you are ready.

William E. Hellerstein:

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

These cases are before the Court on appeal from the New York Court of Appeals, which by a vote of four-to-three sustained the former and present New York arrest statutes which allow arrest entries even in the absence of non-exigent circumstances into the home and permit nonconsensual and forcible entries for the purpose of arrest.

Two cases before the Court present the statutes in two virtually kind of apprehensive applications.

In the Payton case, you have the forcible, and I would say extremely forcible entry without a warrant, namely the breaking down of Mr. Payton’s door with crowbars.

In the Riddick case, you have a nonconsensual but an entry with less force and I would say not exactly force, namely the knocking on a door, the opening of a door by a three year old boy, the entry to arrest and the placing of the defendant, who was in bed, under arrest.

The facts leading up to both of these cases, in the Payton case, a homicide in the cause of robbery had been committed on January 12, 1970 in the service station in Manhattan’s Upper East Side.

Investigation at the scene led to the discussion of investigating officers with witnesses to two days later, the officer learning the name of Mr. Payton.

One of the informants or people who spoke with the officer took the police on January 14, two days after the crime, sometime in the afternoon.

Took the officer to Payton’s building in the Bronx and pointed out his apartment to him.

That detective, Detective Malfer, the investigating detective made no effort at that time to arrest the defendant.

Instead he came back and the following morning and a company —

Warren E. Burger:

Would it make a difference to your position if he had made the arrest with these steps right then and there?

William E. Hellerstein:

I think it would be a tougher case for us Mr. Chief Justice, I think it would — because then in the course of that ongoing situation, it might be argued by the prosecution that the circumstances were exigent in the sense that at the very first moment that Detective Malfer learned where a suspected felon for which he had probable cause lived, he might then have possibly consummated the arrest.

But that’s not what happened and I think that’s —

William H. Rehnquist:

Judge Walker felt that way in the Court of Appeals.

William E. Hellerstein:

Judge Walker was the only judge Mr. Chief — Mr. Justice Rehnquist, who felt that way, who felt that this — and it was a continuous pursuit.

I would submit that the concept continuous pursuit is still not exactly an exigent pursuit, a pursuit in exigent circumstances.

But I don’t think you don’t even have to agree with Judge Walker.

I think that the concept of continuous pursuit, in the Chief Justice’ question, if that were the case would make it a tougher case.

I would not necessarily concede to the circumstances was still exigent, but that’s not this case.

The fact of the Payton case is that not having done that.

The officers — the officer chose to wait until the following morning, some 12, 14 hours later.

When accompanied by other officers, attempted to enter Payton’s apartment and not being able to do so still took additional time to call for assistance by a call to the emergency services division of the police department who came with crowbars and broke the apartment open, the door of the apartment open.

And Mr. Payton was not there, and even though Mr. Payton was not there, the officers ransacked the apartment, searched in cupboards, drawers, closets, under the mattress knowing he was not there.

Everything that was found was suppressed on consent by the district attorney because it was of course illegally seized in an unlawful search.

The one item of evidence that was not suppressed was a .30 caliber shell casing that was found ostensibly in plain view by Detective Malfer and was matched shell casings found in the scene of the crime.

The trial court and ultimately the Court of Appeals by a four-to-three vote sustained the admissibility of that shell casing on the ground that the officers were lawfully on the premises to consummate an arrest under New York’s then Code of Criminal Procedure, Sections 177 and 178, they could break and enter without a warrant.

The Riddick case somewhat different in the sense that the officers had probable cause to believe Mr. Riddick had committed a robbery.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

In 1971, they had probable cause at least two months before they went to his apartment.

Or I should say they learned his address two months before they went to his apartment.

They had probable cause around earlier.

The arrest in Riddick was extremely typical.

No great hurry, despite what the prosecution would call a violent crime.

They knew where Mr. Riddick was and waited two months.

Prosecution concedes that there was nothing at all negligent about the Riddick case.

That brings before the Court the issue of the constitutionality of the statute.

The Court of Appeals by a majority vote, I think placed its emphasis on three concepts or items.

The first that an arrest entry is a much more substantial intrusion than an entry for the purpose of a search for which this Court has required warrants and that the history of a common law with respect to arrest entries was extremely well settled and clear and supported the Court’s decision.

The Court also placed an emphasis on the existence of statutes similar to New York’s and many states and upon the proposal of the American Law Institute not recommending a warrant be obtained in these particular circumstances.

It is our submission that the Court erred on all three respects.

Potter Stewart:

Mr. Hellerstein, you said of the three factors, you said one of them was that the court’s view that an arrest entry was more intrusive or less intrusive?

William E. Hellerstein:

Less intrusive.

Potter Stewart:

That’s what I thought.

William E. Hellerstein:

Yes, I’m sorry if I’m mistaken, it was less intrusive.

I think the logical starting point for our argument must be the plurality opinion of this Court in Coolidge where at that time four members of the Court expressed a view that a warrantless entry into a person’s home to arrest was at odds with the warrant requirement of the Fourth Amendment, the per se requirement for searches.

William H. Rehnquist:

When you use the term entry, Mr. Hellerstein, supposing that in the Riddick case for example the police had come up the steps onto a porch and the door had been open and hadn’t been or it was shut and then opened by a three year old, and simply on the steps they had seen Riddick in the house, in the room and in bed as he was, would that be an entry?

William E. Hellerstein:

Yes, Mr. Justice Rehnquist.

I believe it would.

It might be the most peaceable entry, but it would definitely be an entry.

I think they would have had to obtain permission to cross the threshold and come into Mr. Riddick’s room.

I think the views expressed in Coolidge hopefully will be able to support the conclusion of our argument.

I think that there is one interest that has predominated this Court’s decisions both in holding and in dicta as I read them.

It is that the expectation of privacy within the home is the highest of its kind that there is nothing more sanctified, in our constitutional system both historically and juridically, and that the privacy of the home is paramount.

It is a place where people repair, to enjoy in their utmost, their thoughts, their personal feelings, their family life and although in Katz the Court spoke of the Fourth Amendment of protecting people not places.

I believe that was supplemental to the notion that the home is a place where the privacy interest is at its highest.

Without his background and I’m not so sure that the prosecution if — even disagrees with what I’ve said to that point.

The Court of Appeals I think erred grievously in about seven different respects in concluding that an arrest entry was less substantial than one for purposes of the search.

When police enter private premises, that entry first of all affects everybody in the premises, there’s family, children.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

The manner of the entry is not designed to ensure the privacy of the people within or to minimize the intrusion on their privacy.

I think we’ve pointed out in our briefs that actual manuals by recognized experts, police conduct and practice point out the nature of the way that entry should be made.

William H. Rehnquist:

But — but what again if you have the door open and the people simply doing whatever they’re doing in the front room with obviously no intent to conceal it.

The windows are open, the door is open anyone walking on the sidewalk can see it?

William E. Hellerstein:

I don’t know how common that would be Mr. Justice Rehnquist.

If the problem is that people who open the door expose what is within to the — open eye, they are responsible for minimizing their privacy, but that might be impossible with respect to a search.

But to arrest, the entry is the key.

It is the crossing of the premises.

Now there may not be the kind of intrusion in that particular situation that would be the most minimal, but there is nonetheless the intrusion, also the police may still enter in the same way they would’ve if they had to go to the door and knock it or break it down in the force of four or five perhaps.

Both Riddick and Payton exemplary cases of more than one officer going, they might still enter even though the door will open, fan out, conduct the protective sweep which is recommended by the authorities and which I think is rather a common place, and that is a substantial intrusion.

It’s a substantial intrusion because in conducting a fan out or a protective sweep, there is immediately open to view of the police whatever items, supposedly personal items the occupants of the premises have, and I would say that even conducting a search incident to that arrest is nonetheless a search of a good deal of intensity.

The search of a person, in your hypothetical Mr. Justice Rehnquist, if the suspect is not in the room that’s open to view and even though the entry is across a threshold without the breaking of a door, but the suspect say is in a backroom or in the Warden case where — Warden versus Hayden, where the court saw a search for a person that covered a multi-room house.

That can be also an extensive search for a person.

Potter Stewart:

Including a washing machine in that case, wasn’t it?

William E. Hellerstein:

I believe it was Mr. Justice Stewart.

So as a general proposition, I think the intrusion for purposes of arrest are not minimal and they are not less than a search.

In fact I would submit that there are occasions when an entry for search can be far more — far less intrusive.

In the two cases before the Court, I don’t think you can conclude that there was a minimal intrusion of any kind.

For these types of intrusions, we submit that a warrant should be required, that there is nothing in the interest of law enforcements to preclude or to cut against requiring a warrant in these two situations.

The last decision of this Court dealt with the subject of warrants for arrest of course was the Watson case.

And this Court predicated its decision, as I read it, for dispensing with a warrant on several factors.

The publicness of the arrest to — with the liberty interest was not so substantial.

I think the Court of Appeals below in majority pointed to that.

But in this case or these cases you have what is the privacy interest as well.

But it was a case in which Mr. Justice Powell said that there were times that logic must refer to history and experience.

And because the history and experience of the common law with respect to public arrests was what it was in Watson, the Court felt that warrant should not be required for non-exigent public — for any public arrests.

So we respectfully submit and I think we’ve try to in great length in our brief to establish that the common law with respect to entries into the home to arrest without a warrant was a bird of a different color.

In fact I believe the Court, opinion by Mr. Justice Brennan in Miller versus United States pointed first citing with approval Judge Prettyman’s decision in Accarino versus United States which held that you would had to have a warrant to enter but as a minimal proposition pointed out to the disarray among the common law sources with respect to entries without a warrant.

Warren E. Burger:

Wasn’t the Miller case under a federal statute?

William E. Hellerstein:

The Miller case was under 3109 of Title 18, Mr. Chief Justice, and it did involve the issue of knocking, announcing that — but in the course of the Court’s analysis as to the knock and announce statute, the common law sources with respect to the general proposition of entry without warrants was examined and pointed out to be insubstantial disarray.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

In that disarray, we believe it does not afford the Court the freedom nor should it to conclude that the Watson line of analysis would be appropriate.

The disarray continued beyond the common law into the 19th century.

And of course a number of stat — states passed statutes similar to ours not requiring warrants.

Interestingly, once Courts begun to look at these statutes and these practices under Fourth Amendment principles, the predominant overwhelming weight of lower court judicial authority, state and federal, has been to require warrants in non-error — non-exigent circumstances.

The Second Circuit in United States against Reed in a recent decision which the Court of Appeals just did not feel it should follow so held, and the Courts of Appeals have predominated on that view.

The warrant requirement in the context of entries for home arrest will not impose any substantial legitimate burden of law enforcement.

If the circumstances are non-exigent there is no reason for law officials — law enforcement officials not to obtain a warrant.

The basic concern of the prosecution is that in such a circumstance the requirement to obtain a warrant will preclude catching dangerous criminals quickly.

I believe Mr. Justice White in the Channel opinion, you also expressed that concern.

The fact of the matter is as I believe a test clause report which is cited on our brief of — with respect to the President’s commission on law enforcement initiation of justice, establishes that 50% of the arrest that are made throughout the country are made within two hours of the crime, 45% of the arrests, the remaining 45 are made a day after the crime.

That conclusion led the Government in its brief in Santana for example to say it could easily live with a requirement of two hours plus for a warrant.

And in the Government’s brief in the Watson case itself, it pointed out that the FBI as a practice obtains arrest warrants whenever practicable because it is in the interest of the Government to secure a warrant, that the scrutiny as to probable cause that the dangers of losing evidence because of suppression are minimized by obtaining a warrant.

We submit that the arguments presented by the prosecution that this nonetheless will be a burden on law enforcement are not — do not meet the actual test.

Potter Stewart:

After a grand jury indictment, is a warrant generally obtained in New York, or do they — does it — is it considered that the indictment is the equivalent of a warrant?

William E. Hellerstein:

There is generally as I understand it a warrant obtained after the indictment.

That’s the only way in the present law in New York.

Now, it looks like this Mr. Justice Stewart, it is a document that says warrant of arrest, a bench warrant or warrant, and this — it — this is issued after an accusatory instrument.

This would be the Supreme Court warrant on a felony case.

This would be a criminal —

Thurgood Marshall:

This would have to go simultaneous.

William E. Hellerstein:

Pardon me?

Thurgood Marshall:

Simultaneous is not after it, it’s simultaneous when the indictment is issued, that’s issued at the same time —

William E. Hellerstein:

Yes.

Thurgood Marshall:

— isn’t it?

William E. Hellerstein:

Yes, Mr. Justice Marshall.

Potter Stewart:

An indictment or an information?

William E. Hellerstein:

Or an information, yes, but under current —

Potter Stewart:

That’s a so-called grand jury indictment or —

William E. Hellerstein:

Yes.

Potter Stewart:

— a grand jury warrant or bench warrant.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

Prosecuted information of complaint.

Potter Stewart:

But a warrant is issued in both cases —

William E. Hellerstein:

Yes.

Potter Stewart:

— after a charge is formally filed —

William E. Hellerstein:

Yes.

Potter Stewart:

— either by grand jury or information.

William E. Hellerstein:

Yes.

Potter Stewart:

That’s about the only time that in New York to warrant.

William E. Hellerstein:

Well, not necessarily.

Potter Stewart:

An arrest warrant is issued.

William E. Hellerstein:

Not necessarily.

In the sense that I have been informed that its been my experience at times police will go and get an arrest warrant occasionally.

But they of course have to have an accusatory instrument, so they’ll go to the complaint room in and say in New York or Manhattan have the complaint drawn up, district attorney will accompany the police officer up to the bench and arraign in part and get an arrest warrant based on that accusatory instrument, piece of paper like that.

Potter Stewart:

Well, an affidavit generally is enough to support a warrant.

William E. Hellerstein:

Yes, but under New York law it must be an accusatory instrument.

Potter Stewart:

And what determines whether or not there will or will not be a warrant in a non-grand jury or non-bench warrant situation?

William E. Hellerstein:

I think what determines that is really the judgment of the police and most often has not obtained a warrant.

Potter Stewart:

Who informs the policeman’s judgment, anything?

William E. Hellerstein:

Officer — departmental procedures, there are no particular guidelines and it is rare, certainly in this context for a warrant to be obtained on the basis of — I should say rare.

It’s not the practice as I’m informed but perhaps —

Potter Stewart:

But sometimes it is done.

William E. Hellerstein:

Yes, sometimes.

Potter Stewart:

And this apparently just depends upon the whim of the policeman?

William E. Hellerstein:

Yes, as I understand it.

Warren E. Burger:

Very well Mr. Hellerstein.

Mr. Zimroth.

Peter L. Zimroth:

Mr. Chief Justice, may it please the Court.

The community, the societal interest that’s at stake in this case, and this case is enormous.

We’re talking about here is not simply gathering evidence but bringing the defendant to Court so that the civilizing processes of law can even be brought to bear on that case.

This is, I believe, one of the first requirements of any civilized society, the alternative to which is vigilante justice.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

This fundamental interest that is to have a Court bring the processive law to bear has been recognized throughout history.

And that is why the judgment has been made throughout history that it is better not to impose a lawyerized process before the arrest and that’s regardless of where the arrest takes place, but rather that it is better first to obtain custody of the defendant.

And then to construct a system whereby the defendant is given all the processes he is due.

And it is a very elaborate system.

The defendant must be brought to Court immediately after arrest.

The continued custody — his continued custody is tested immediately.

Eventually, his guilt of innocence is tested.

And also, in this process there is a review of the arrest process itself.

We are not here suggesting that the Fourth Amendment has nothing to — says nothing about the arrest process.

Of course it says a lot about the arrest process.

Potter Stewart:

And the question in this case is how much and what does it say?

Peter L. Zimroth:

That’s exactly right.

Potter Stewart:

And what do you think it says?

Peter L. Zimroth:

I think what it says is that you have to show probable cause to make the arrest and also although this Court has not stated this is a constitutional matter, nonetheless most states in the common law history suggest that if this is going to be a forcible entry the Courts will, after the defendant is in custody, determine whether or not the police made every — an attempt, the proper attempt to avoid the necessity for the forcible entry that is by knocking and announcing their authority.

And if the police behave unlawfully very, very severe consequences attach to that.

Potter Stewart:

Well, the question is what is unlawful, isn’t it?

I mean that’s the question of this case.

Peter L. Zimroth:

That’s right.

Potter Stewart:

You concede there must be probable cause, and I gather you just conceded that there is a duty to minimize the forcibleness, forcibility of the entry and beyond that nothing for an arrest of a person inside his own house?

Peter L. Zimroth:

Well, I think that there might be special concerns in certain areas, that is if it were a nighttime arrest, I think it might be a special situation or if it were an arrest —

Potter Stewart:

Well now, requiring a additionally.

Peter L. Zimroth:

Excuse me?

Potter Stewart:

Well, if it were at nighttime, what additionally would be required by the constitution?

Peter L. Zimroth:

It is conceivable though no Court has so held, or the Court has not held, this Court has not held.

It’s conceivable that in no circumstances this Court might impose a warrant requirement because if —

Potter Stewart:

Well, to say it — the Court would only hold to the constitution imposes it.

Peter L. Zimroth:

That’s right.

I’m saying that is conceivable that it — all I’m trying to suggest that — is that this case doesn’t present that question of nighttime arrests.

I agree, that is the question, the question in this case is, is it a warrant required.

All I’m saying is that by saying a warrant is not required if the Court so holds that that is not the same saying the Fourth Amendment doesn’t apply, that there are other protections that the Fourth Amendment imposes on this situation.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Potter Stewart:

I.e. there has to be probable cause?

Peter L. Zimroth:

That’s right.

Potter Stewart:

And there has to be a minimumization of the enforcements?

Peter L. Zimroth:

That’s right, and very severe consequences.

Also the exclusionary rule for one and tort actions for another.

And I’m suggesting that this is a debate that is that Mr. Hellerstein and I are having that has been a debate throughout history.

That is exactly the same terms of the debate.

That is the privacy of the home as opposed — on the one hand, and on the other hand the tremendous public interest in bringing a suspected felon upon which — about whom there’s probable cause to believe that he’s committed a felony to justice.

And the judgment of history which I think is relevant to the issue of whether or not the constitution requires a warrant has been uniform in this respect.

No prior judicial screening has been required.

Mr. Hellerstein says it is a big dispute at the common law and I think he’s making it understandable but nonetheless apparent error in that respect.

And that is that there were disputes about what sort of showing the police officer had to make after the arrest.

Some of the common law authority said that all you had to do is show probable cause in order to relieve yourself of liability.

Others said that you have to show that a felony had actually been committed.

And a few said that you had to show that the defendant was actually guilty, but none of —

Warren E. Burger:

When you said that’s — had to be an effort to minimize the use of force, are we to take that as meaning that you’re drawing on the reasonableness, the term unreasonable in the Fourth Amendment?

Peter L. Zimroth:

Yes, I am Your Honor.

Warren E. Burger:

Well then, you’re going to the midnight search, 2 o’clock in the morning, when presumably most people have their house closed, they’re asleep, what do you say about breaking down the door then?

Peter L. Zimroth:

I would have to say that it would depend on the case Your Honor, or I might —

Warren E. Burger:

Well, just take that much, mid — exactly your circumstances, midnight, 2 o’clock in the morning, every — the house is dark, everyone is asleep.

Peter L. Zimroth:

I would have to say that in the circumstances of the Payton case, that that would be a reasonable entry because —

Warren E. Burger:

Isn’t there some case in which there was an observation made not by this Court but by — perhaps one of the Courts of Appeals or State Supreme Courts says that that type of a breaking and entering might produce the deaths of some police officers —

Peter L. Zimroth:

Which is why I think the balance is a little different in that — in the nighttime entry than it is in a daytime entry.

I should say that the judgment that I’m talking about, about the reasonableness of entering without a warrant is not only uniform throughout history, but it is the judgment made in most states today.

There are 36 states that have statutes on this subject and 30 of them —

Lewis F. Powell, Jr.:

Counsel, if it’s only in most states, how can it be uniform throughout history?

Peter L. Zimroth:

It has — it has —

Lewis F. Powell, Jr.:

Even the history up to a certain point in time?

Peter L. Zimroth:

Yes, they’re up until relatively recently, until the Court’s dictum in Coolidge.

And what happened after Coolidge is that many Courts in effect reserved on the issue.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

They’ve said that, “We assume for the purposes of argument that a warrant would be required but we find exigent circumstances.”

Not all the courts say that but many of the ones cited by Mr. Hellerstein.

There is not a —

Byron R. White:

Well Mr. Zimroth, when you’re talking about a — the necessity for a warrant or when your colleague is talking about a warrant, is it an arrest warrant that you’re talking about?

Peter L. Zimroth:

That’s a basic ambiguity in this case.

Byron R. White:

Or is it not only an arrest warrant but a warrant to enter a house?

Peter L. Zimroth:

Most of the Courts, all but one I think, has — that have held that they needed to be — a warrant say that there need to be only an arrest warrant.

I think there’s an ambiguity there and the difficulty.

This Court has already said that in Watson —

Byron R. White:

Well, you said all but one, what about the one?

Does the one say that there — the warrant also has so authorized the entry?

Peter L. Zimroth:

Yes, Your Honor but that —

Byron R. White:

And must there then — and to get that kind of a warrant, must you show probable cause to believe the person is in the house?

Peter L. Zimroth:

Yes.

Warren E. Burger:

We’ll resume there at 1 o’clock.

You can ponder on those questions.

Mr. Zimroth you may —

Peter L. Zimroth:

Your Honor —

Warren E. Burger:

— continue.

Peter L. Zimroth:

Mr. Hellerstein blindly assumes that there would be no serious practical consequences if this Court imposes a warrant requirement.

The basic problem with the warrant requirement is that it — in essence that it imposes a review mechanism on a situation that in, it grows, in most cases or in many cases is very fluid and very volatile.

Warren E. Burger:

Well, I didn’t —

Peter L. Zimroth:

First —

Warren E. Burger:

I didn’t understand your friend to be suggesting that a warrant must be obtained in every case just because time would permit it.

Peter L. Zimroth:

Well, if I may say so Your Honor, he earlier this morning, he criticized the police in the Payton case for not in effect getting a warrant after the building was pointed out to them.

And I think if there were a warrant requirement there would be a pressure on them to get a warrant at that time.

Now, you might ask why didn’t they get a warrant at that time assuming that there had been a warrant requirement.

At that time, first of all, they did not know that the defendant was there.

His building have been pointed out to him but they also had information someone had told the police that the defendant said he was going somewhere.

More important than that, they did not know what Mr. Payton looked like and they did not have his correct name.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

Isn’t it better for them to do what they in fact did do?

They took this witness back to the station house, they talked to him for a considerable length of time, they got photo arrays, they got pictures and the witness eventually pointed out Mr. Payton’s photograph later in the evening.

Now it seems to me that that is an illustration of what will happen if there is a warrant requirement.

It will pressure the police to solidify their decisions before it is appropriate to do so.

The exigent circumstances exception that Mr. Hellerstein says will solve all these problems will not solve the problems.

And the reason it won’t solve the problems are because the exigent circumstances exceptions —

Thurgood Marshall:

Well, just one question after you finished talking to this man did he then know who he wanted?

Peter L. Zimroth:

They knew the name — they knew the correct name.

Thurgood Marshall:

Well, couldn’t he have gotten a warrant?

Peter L. Zimroth:

They did not have — they did not know — they knew his address but they didn’t know he was home.

Thurgood Marshall:

But what — does the warrant say he’s home?

Peter L. Zimroth:

No, the warrant didn’t say he was home, but the point is that —

Thurgood Marshall:

But did the warrant ever say he’s home?

Peter L. Zimroth:

No, but the point is shouldn’t we —

Thurgood Marshall:

Well, what would stop him from getting a warrant?

Peter L. Zimroth:

It wouldn’t stop him from getting a warrant, but isn’t it better —

Thurgood Marshall:

But what?

Will it inconvenience him to get it?

Peter L. Zimroth:

Yes, it would.

The way it would inconvenience them is that instead of doing further investigation, they would have to divert their resources and go get a warrant.

Thurgood Marshall:

And yet —

Peter L. Zimroth:

Getting a warrant is not —

Thurgood Marshall:

— how long does it take to get a warrant in New York City, as if I don’t know.

Peter L. Zimroth:

Well, the federal authorities in the Campbell case estimated about six hours to get a warrant.

Thurgood Marshall:

In New York City?

Peter L. Zimroth:

Yes, in New York City, about six hours to get a warrant.

Now it’s not only a question —

Thurgood Marshall:

Where is that?

Peter L. Zimroth:

In the Southern District of New York which includes Manhattan where this crime occurred.

Thurgood Marshall:

Yes, I know where that is but where is this figure that takes six hours?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

In United States against Campbell, a Second Circuit case where the District Court and the Court of Appeals accepted the testimony of, I think it was an FBI agent.

Thurgood Marshall:

Well, aren’t there magistrates’ courts right in the police area?

Peter L. Zimroth:

No, no sir there are not.

Thurgood Marshall:

Never?

Peter L. Zimroth:

I don’t know about never but there were not in 1970 and they were —

Thurgood Marshall:

Including Washington Heights?

Peter L. Zimroth:

As far as I’m aware, there are not.

There weren’t then and there aren’t now.

It’s sort of interesting.

The assumption is that getting a warrant is a very easy affair.

It’s not an easy affair.

You have to worry about first of all you call the district attorney and you review the case with him.

The Courts in New York as in many other jurisdictions, you can’t get a warrant until you actually initiate a criminal proceeding.

So you review the case with the assistant district attorney.

You have to worry about typists.

You have to worry about transportation.

You have to worry about court stenographers.

Six hours is a long time, and the other point is —

Potter Stewart:

Would you say that was the evidence in some other case —

Peter L. Zimroth:

Yes, sir.

Potter Stewart:

— under the federal system?

This is your case and the state system.

Peter L. Zimroth:

Well, there’s no evidence here because there was no warrant requirement here.

Potter Stewart:

Yes.

Peter L. Zimroth:

I would suggest it would take long to hear than it would in the federal system.

Potter Stewart:

But you don’t know, there’s nothing that shows any answer to my Brother Marshall’s opinion — question?

Peter L. Zimroth:

No, I would say though that if you compare the federal system and the state system, it raises another problem and that is the problem of resources.

We’re talking about in this case supposing warrant requirement not on the FBI or the DEA or the Assistant United States Attorney, but upon approximately more than 20,000 police departments throughout the United States.

William H. Rehnquist:

Well it isn’t just resources Mr. Zimroth is it?

In the County of — where I — the state where I came from, there’s a county, Coconino which has 20,000 sq/m area.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William H. Rehnquist:

Massachusetts has an area of 9,000 sq/m, just a transportation problem in that sized county is going to be very substantial if the only magistrates as they are located in the county seat.

Peter L. Zimroth:

Absolutely Your Honor, and the reason I mentioned the number of police departments is not only because it’s a question of resources, but it’s a question of different problems in different areas.

We’re dealing with 50 states in all these different police departments, some rural counties, some urban counties with some have more resources some have fewer resources.

Some police departments have one member, and some investigations may have only one person on it.

If that —

Thurgood Marshall:

And some might not even have a judge.

Why’d you go to the whole hope while you’re at it?

Peter L. Zimroth:

Excuse me?

Thurgood Marshall:

Some counties might not even have a judge that could issue a warrant.

Peter L. Zimroth:

If — if that’s true — I’m not aware of that being here —

Thurgood Marshall:

West Virginia is one state.

Peter L. Zimroth:

— but if it’s true that is a very — it is a very serious problem.

Warren E. Burger:

— there are numerous counties in the United States that have no judge, are there not?

Peter L. Zimroth:

Well, then it’s a very serious —

Warren E. Burger:

If there any.

Thurgood Marshall:

Oh, you have a —

Peter L. Zimroth:

The problem in that respect.

And the important thing is that we’re standing here after the event.

Thurgood Marshall:

We’re standing — what I’m talking about is a place that has more than one judge who’s available and you don’t have to travel 86,000 miles.

Peter L. Zimroth:

That’s true, but it still takes a substantial period of time, and the more important factor than that Your Honor, is that it seem to be unfair to judge a warrant requirement after everything has solidified that’s why the question about the indictments is not a fair question, because when an indictment issue all of the evidence has been gathered and it is presented to a body.

We’re talking about imposing a warrant requirement in the on going investigative stages.

Potter Stewart:

Well, all those things are true about a search warrant aren’t they?

Peter L. Zimroth:

They are true about the search warrant there are two — there are several very important differences.

The first is the difference of numbers.

In New York County last year, there were approximately 500 search warrants issued in New York County.

There were 30,000 felony arrests in New York County.

Potter Stewart:

All of them or a majority of them in people’s homes?

Peter L. Zimroth:

No, Your Honor.

but the important point is that the police will not know in advance whether they’re going to find the defendant in his home or not.

Anytime that the arrest is substantially after the commission of the crime itself, the police — the home is naturally a logical place to check, so that it seems to me that under warrant requirement they will have to get that.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

Mr. Hellerstein cites a study which we also cite in our brief which indicates that about half of the felony arrests are made more than two or three hours after the commission of the crime.

So we’re talking about potentially a universe of 15,000 cases, not three or 400 cases.

John Paul Stevens:

Mr. Zimroth, can I ask you what your view of the laws with regard to this kind of situation?

Say the police have — as it now a probable cause to arrest a man.

They go to his home and ask if he’s home.

The person who answers the door says no, and the police don’t believe him.

Can they bust in and arrest him?

Peter L. Zimroth:

Under the present law, yes they can.

John Paul Stevens:

There’s no — they have no requirement of probable cause to believe that he’s in the home?

Peter L. Zimroth:

Oh, I’m sorry, if —

John Paul Stevens:

They just don’t know, but —

Peter L. Zimroth:

Oh, no —

John Paul Stevens:

— the first thing they do they want to pick up this man at such and such —

Peter L. Zimroth:

No, they cannot.

John Paul Stevens:

Well then, in any situation would the warrant requirement help or hurt?

If they had the warrant I suppose they could go right in.

Peter L. Zimroth:

Well, the warrant would be, in my judgment, invalid — I mean the warrant would be valid but the arrest would still be illegal because it seems to me that regardless of the warrant requirement the police need probable cause to believe that the person is in his home before they can, or in a given location, before they can bust in.

And the warrant —

Thurgood Marshall:

Do the arrest warrants in New York limited to a place?

Peter L. Zimroth:

No, they’re not.

They don’t —

Thurgood Marshall:

They’re limited to a person.

Peter L. Zimroth:

That’s right but it —

Thurgood Marshall:

And you can pick them up any place.

Peter L. Zimroth:

If you pick him up in his — in a dwelling you need probable cause to believe he’s in there, that’s by statute in New York.

And I also believe it is and should be a matter of constitutional law.

That is the mere existence of the arrest warrant without probable cause does not justify going in to a residence.

John Paul Stevens:

But what you’re concerned about then is not the probable cause to arrest showing but the probable cause to believe he’s inside the premises, which is not at issue in this case.

Peter L. Zimroth:

No, I’m concerned about imposing the requirement in advance of an arrest warrant that is having the — the police have to in all these thousands of cases go to a magistrate to have them review the probable cause to get an arrest warrant in order for them to go into a home.

Mr. Hellerstein —

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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John Paul Stevens:

Well, let me presume my example now under — that I gave you before, and how would the law differ depending on how we decide this case.

If they say he’s not here, you’re saying doesn’t really matter whether they’ve got a warrant then.

If they say, “Yes he is here”, and then they say, “Well, we would like to seem him and place him under arrest”, and now if they say, “Well, you — then he kicks out the backdoor, I presume you could chase him because it’s an exigent circumstance.”

You do the same thing whether you have a warrant or not, wouldn’t you?

How does it — whether you got a warrant affect anything?

In this situation, you go to the door you say, “I want to see so and so because I want to place him under arrest.”

Peter L. Zimroth:

In that case, it depends — what Mr. Hellerstein would say is that —

John Paul Stevens:

Well I’m asking you, so what would you say?

Peter L. Zimroth:

Yes, I know but you’re asking me what practical consequences —

John Paul Stevens:

Yes.

Peter L. Zimroth:

— the rule would have.

If there were an arrest warrant ruled and the police had had some opportunity in advance to get an arrest warrant.

John Paul Stevens:

Right.

Peter L. Zimroth:

I think Mr. Hellerstein would say that the fact that exigent circumstances arose at that time would not be sufficient that they could’ve foreseen this possibility and they should’ve gotten an arrest warrant.

John Paul Stevens:

But that’s a question that would be answered by deciding what are exigent circumstances?

Peter L. Zimroth:

And that is what —

John Paul Stevens:

We might agree with them or disagree with them on that.

Peter L. Zimroth:

And that is the difficult point here Your Honor is that the police have to know in advance what a court two, three, in this case nine years —

John Paul Stevens:

Well, supposing we agreed with you that that would be an exigent circumstance if they knock on the door, they say, “We want to arrest him.

If he flees at that moment now they could pursue him.

If that’s an exigent circumstance and then you don’t have anything to worry about, I guess.

Peter L. Zimroth:

Yes, you have something to worry about in that — if the Court imposes — in that particular case, we would win —

John Paul Stevens:

Yes.

Peter L. Zimroth:

— I agree.

John Paul Stevens:

You’d win.

Peter L. Zimroth:

In that particular case we would win, but the arrest warrant require —

John Paul Stevens:

Yes, so when if you knock on the door and he says, “Yes, he’s here”, and he comes out and you arrest him.

Peter L. Zimroth:

That’s true.

John Paul Stevens:

Alright.

So if he either — if he’d runs or if he comes out, you win either way, now when do you lose?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

We lose because if there’s an arrest warrant requirement the police in the course of their investigation will not know whether — they would not know what’s going to happen at the door.

John Paul Stevens:

Right.

Peter L. Zimroth:

Those are only two possibilities of things that might happen at the door.

Another thing that might happen at the door is that they might find — get information that the person whom they’re looking for is not in fact guilty.

If they had previously had to get an arrest warrant, presumably they would end up having to arrest him.

In other words, what I’m saying is that in advance —

John Paul Stevens:

You say they must arrest him even if they know even if — they would believe he’s not guilty?

Peter L. Zimroth:

No, if — well, it depends on how strong the proof is.

John Paul Stevens:

I don’t think that’s very —

Peter L. Zimroth:

But an arrest warrant is a command.

John Paul Stevens:

Well, I understand that, so is a search warrant.

But you — don’t you mean to say every time you get a search warrant you must search even though you find out that there isn’t — you’re wrong?

Peter L. Zimroth:

No, but the realities in the situation are that the police and — I overstated by saying that they know he’s not guilty.

They may have some doubts in their mind instead of allowing them to do further investigation.

The arrest warrant requirement will pressure them, will be an additional pressure for them to make the arrest.

The point is that any exigent circumstances exception is bound to be quite unclear.

If you look what’s happening in the various states that’s exactly what’s happening.

In some states like in California, there’s an exigent circumstances exception that’s applied so strictly that if the police wait literally ten minutes before they go in and make the arrest, then the Court say they should’ve gotten a warrant.

That’s the People against Ellers case which we cite in our brief.

In other jurisdictions, these exigent circumstances exception really distorts what we ordinarily think of it, the exception out of all proportion and that also is a very unhealthy situation.

It’s an unhealthy situation because it doesn’t give any guidance to the police.

And it’s an unhealthy situation because eventually those cases may influence the exigent circumstance exception in the search area which would be very unfortunate.

I think that the basic point that I want to make here is that you can always think of situations in cases where there are — where you could say, “Well, the police should have time to get a warrant or they didn’t have time to get a warrant.”

But all of those are going to be situations in which we are sitting after the event judging what is already transpired and not situations where the police have to engage on ongoing investigation.

John Paul Stevens:

Well, if that’s true of any arrest situation, you judge after the event whether there was probable cause.

Peter L. Zimroth:

And that’s what I think should —

John Paul Stevens:

And — and in fact if you get the warrant first you’d have a pretty good idea whether or not you had probable cause.

It seems to me there’s more of an after the fact judgment when you don’t have a warrant.

Peter L. Zimroth:

But you don’t require the police to — in a sense, in the midst of their investigation review the evidence before they make the arrest.

John Paul Stevens:

That’s only if they want to make the arrest in a home.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

But they’re not going to know in advance whether they’re going to be in the home, whether the defendant is going to be in the home.

So that the requirement is going to have more effect than simply arrest that are made in the home.

And I think that its — if these kinds of problems which are very difficult to get your hands on because the investigations are by their nature of an infinite variety.

It’s this very reason I think that until Coolidge there has been a uniform judgment not to impose an arrest warrant requirement on the police.

And the people who came to that conclusion were not people who were insensitive to the concerns of privacy in the home.

They were the very same people who created the protections which later became the protections embodied in the Fourth Amendment.

I’d — I have — I see I only have a few more minutes and I did want to — the mention of Coolidge brings me really to the second point in the case.

And that is until Coolidge was decided there was very little if anything which could’ve given the police in the Payton case any reason for going to get a warrant.

There was a state statute at the time which authorized them to enter without a warrant.

What — even if what conceivable purpose of the exclusionary rule would be served if now nine years after that event this Court excludes the evidence that they found upon entry.

They were following the law as they understood it, and the way they understood it is exactly the way almost every single — everybody else —

John Paul Stevens:

Well, they surely was following the law as they understood it when they searched the entire premises, were they?

Peter L. Zimroth:

And they’d pay the price for that Your Honor.

John Paul Stevens:

Yes, but I mean you can’t say they were all following the law as they understood it —

Peter L. Zimroth:

But we’re not judging —

Thurgood Marshall:

You say pay, how did they pay the price?

Did you put them in jail?

Did you give the people damages?

Peter L. Zimroth:

I say we paid the price.

I should’ve said we paid the price.

Thurgood Marshall:

Oh!

Oh, excuse me.

Peter L. Zimroth:

And it was a very substantial price, I should say, that that is at the — what was suppressed on the prosecutor’s concession before the hearing below were photographs of the defendant in the ski mask when — and that was the evidence at the trial that he went in with a ski mask.

And I should say Mr. Justice Stevens that I’m not condoning the police conduct for searching, and in fact the — my office conceded the illegality of that search.

Thurgood Marshall:

But did you bring any action against the police who did it?

Peter L. Zimroth:

No, sir.

Thurgood Marshall:

You could have.

There was nothing to stop you, was there, from bringing an action against the police who broke down the door and the man wasn’t there, and then —

Peter L. Zimroth:

My point was that in terms of the breaking down of the door, there was absolutely nothing illegal about that at the time.

It was the generally accepted practice in most of the states.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Peter L. Zimroth:

It had been based on a very long history.

These police officers, in respect to the entry, were following what they thought was the law and which if they had called up a district attorney or their supervisor, that person would’ve told them it’s the law too.

And in fact if they had gone and got or tried to get a warrant, in all likelihood the judge would’ve said, “What are you doing here?

You don’t need a warrant.

The statute doesn’t require a warrant.

This is the accepted practice in most of the states.

There’s no substantial constitutional issue that is raised.”

What purpose of the exclusionary rule would be served?

I think myself that the exclusion — that the exclusionary rule would be demeaned in a sense if this evidence was suppressed because you are in effect telling the police that it doesn’t matter that they make an effort to follow the law of the state legislature as they understand it and as it is understood at that time.

If there are no questions then I am finished.

Thurgood Marshall:

Very well.

Mr. Hellerstein, do you have anything further?

William E. Hellerstein:

Just a few things if it please the Court.

Mr. Zimroth is simply wrong, I believe, when he tells you clear out that there is a probable cause requirement for believing that a person who is sought to be arrested in the home must be in that home.

There is no such probable cause requirement that he is at that moment in the home.

Our statute simply requires a reason of belief that he is at home.

And if you know that the man works at night and you go to his home at four in the morning with a warrant or without a warrant, you know he’s not going to be home and that is I think what we’re talking about.

Potter Stewart:

Mr. Hellerstein, it apparently is the fact concededly that in some situations at least, New York does habitually provide for arrest warrants, i.e. grand jury warrants and bench warrants if nothing else.

William E. Hellerstein:

Yes.

Potter Stewart:

Let’s assume a law enforcement officer is armed with a grand jury warrant that somebody’s been indicted in absentia.

First of all, does the warrant say he can enter his home only if he has probable cause to believe he’s at home?

William E. Hellerstein:

He has to in the supporting affidavit.

Potter Stewart:

Say what?

William E. Hellerstein:

That — oh no, he doesn’t have to say he has probable cause to believe he’s in the home.

Potter Stewart:

That’s why I asked my question.

William E. Hellerstein:

No.

No, no.

Potter Stewart:

What’s the warrant say.

There’s no need for a supporting affidavit is there if there’s an indictment?

If there’s an indictment that takes the place of an affidavit.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

Then the warrant simply states the address of the defendant.

Potter Stewart:

That is his home address?

William E. Hellerstein:

Yes.

Potter Stewart:

Usually?

William E. Hellerstein:

Right.

And that can be arrest for any kind.

Potter Stewart:

Yes.

William E. Hellerstein:

Warrant for any kind of an arrest, whether it’s within the home or on the street.

Potter Stewart:

Yes, but does it — are there any additional provisions if he’s at home?

William E. Hellerstein:

No.

Potter Stewart:

Any additional requirements if he’s at home?

Does they have to — somebody have to show probable cause to — for the officer to have thought that he — that the prospective arrestee was in fact at home?

William E. Hellerstein:

He must have a reason to believe.

He does not have to show that he has probable cause to believe he’s at home at that moment.

And if you know the man’s address, it is reasonable to infer that he will be home, unless you have facts to the contrary as I tried to indicate.

I think that’s how the courts have dealt with that.

There is a Ninth Circuit case, I think the Philips case was decided by this attorney which I think is a rare case.

I think the general case, Doorman, some Arizona cases that have dealt with the issue say you do not have to have probable cause to believe that he’s in his home at that moment.

I think one of the main concerns in the area of entering premises is when you’re dealing with third person premises.

Namely, that you have to have probable cause to believe the defendant is in somebody else’s home or is not his property.

William H. Rehnquist:

Mr. Hellerstein, I think your colleague was asked a question and I want to make sure I understand the correct situation, is it your contention that the warrant that should’ve been had here but was not should’ve been a search warrant or an arrest warrant?

William E. Hellerstein:

An arrest warrant, Mr. Justice.

William H. Rehnquist:

An arrest warrant.

William E. Hellerstein:

Yes.

Byron R. White:

And should they expressly have authorized the arrest in the home?

William E. Hellerstein:

I think it need not have.

It simply should’ve been a warrant for his arrest —

Byron R. White:

For arrest —

William E. Hellerstein:

— as a predicate for an arrest within the home, in other words supporting papers I think.

Byron R. White:

And with that warrant which needn’t say anything about the home and I assume that at the time he gets the warrant, or even later, he need not have probable cause to believe that he’s at home?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

That is my submission.

Byron R. White:

But you think that when he — if he purports to enter the house with or without force, without consent, does he need reasonable cause to believe or reasonable suspicion to believe that he’s in the house?

William E. Hellerstein:

Reason to belief –to believe — a reason to believe to conclude the defendant is at home when he is obtaining a warrant.

Byron R. White:

Now that — for that part of it —

William E. Hellerstein:

Nor to obtain the warrant Mr. Justice.

Byron R. White:

For that part of it, under the current law in most jurisdictions including New York I take it where there isn’t a need for a warrant.

Suppose there’s probable cause for arrest and the officer goes to the house.

He wants to arrest him in the house.

Is the law of New York that he must then have reasonable suspicion to believe that he’s in the house?

William E. Hellerstein:

With respect to a warrantless arrest.

Potter Stewart:

With any warrant.

Byron R. White:

Yes, warrantless arrest.

William E. Hellerstein:

With respect —

Byron R. White:

What’s the current law in New York?

William E. Hellerstein:

It says that he must have reason to believe — reason of belief that he’s at home.

Byron R. White:

So that particular — on that particular aspect it won’t make any value in entering the house.

It won’t — the house, it won’t make any difference whether it’s with or without a warrant.

That either case, he must have reasonable suspicion to believe he’s in the house.

William E. Hellerstein:

Yes, Section 140 — 15, arrest without a warrant may enter premises in which he reasonably believes such person to be present, that’s without a warrant.

Byron R. White:

Now, do you think that’s — isn’t that probable cause?

William E. Hellerstein:

I do not believe that is the same thing as probable cause to believe the —

Byron R. White:

Well whatever it is the standard now is for a warrantless arrest in the house, in terms of whether you think he’s there or not, is the same standard as you would accept even with a warrant requirement?

William E. Hellerstein:

Yes, Mr. Justice and that is the statute 1280 which follows that that has the same language.

Byron R. White:

So that you are — you’re warrant requirement then that you are asking be imposed here is more for verifying probable cause to arrest?

William E. Hellerstein:

Absolutely, that’s crucial that a magistrate not the officer should make —

Byron R. White:

Not to protect the home?

William E. Hellerstein:

To protect?

Byron R. White:

Not to protect the home?

William E. Hellerstein:

Oh, yes!

In fact the decision that there was probable cause to believe the man has committed a crime is decision that is made upon a showing to a magistrate.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Byron R. White:

Oh, I know, but the — whether you get the warrant or not isn’t going to change at all the rules to whether you can enter his house.

William E. Hellerstein:

Oh, yes it will.

Byron R. White:

But, well — how will it —

William E. Hellerstein:

It will require a warrant.

Byron R. White:

Well, I know but the only thing the warrant will do that you want is to say there’s probable cause to believe that this man committed a crime.

William E. Hellerstein:

And that a magistrate makes that determination if (Voice Overlap) —

Potter Stewart:

Probable cause to arrest?

William E. Hellerstein:

Yes, probable cause to arrest him.

Byron R. White:

But he — but you don’t want any — you don’t want the warrant — you don’t want to involve the warrant in anything about the house.

William E. Hellerstein:

No.

Byron R. White:

Yes.

William E. Hellerstein:

I think that’s covered.

Warren E. Burger:

Well, isn’t the warrant an authority to arrest wherever found?

William E. Hellerstein:

Yes, yes.

Thurgood Marshall:

What else?

William E. Hellerstein:

Absolutely.

Warren E. Burger:

Within the jurisdiction of the warrant.

William E. Hellerstein:

Yes.

And a concern that the police won’t know where the defendant is, I’m saying if they face —

Thurgood Marshall:

But in most —

William E. Hellerstein:

— they’re going to go to his home —

Thurgood Marshall:

In most places, the last place you’ll find him is at home.

William E. Hellerstein:

Well, the first —

Thurgood Marshall:

If they — if he knows you got his address, that’s the last place he’s going to be.

William E. Hellerstein:

Not so in the Riddick case, Mr. Justice Marshall, but let me — there’re two other things that I wanted to spell.

The notion of this burden of time, at least in urban areas, it is not correct that it takes six hours to get a warrant in New York County.

We’ve cited in our reply brief, one case where it was two hours for a search warrant.

Of course there’s nothing in the record on the time, but I simply submit that six hours is not an accurate statement.

Mr. Justice Rehnquist, with respect to rural areas, I also submit that perhaps the time in obtaining a warrant might be relevant to an assessment as to whether the warrant was required.

But I think that would have to depend upon the situation in that rural county.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

I also don’t know that this Court would hold a magistrate, pure magistrate need issue the warrant under Shadow and the City of Tampa, it might find something less, I don’t know.

Now, third fact that Mr. Zimroth tells you was that once a warrant would be obtained, the police officer would have no alternative even though he now knew the fellow was innocent but to execute that warrant.

That simply is not the case.

There is no reason he cannot countermand that warrant under the federal rules of current procedure Rule 4 (b) (4) or (5).

A magistrate is authorized to cancel any unexecuted warrants upon request —

Warren E. Burger:

How would that affect the City of New York problem?

William E. Hellerstein:

Well, I think the process would be the same.

If an officer says that “Gee, the fellow I got the warrant for, I now know he’s innocent, we don’t have to arrest him.”

And called the district attorney and say, “We’ve made our mistake.

Have them — have the warrant vitiated.”

There’s no — I just think that that’s not so.

Warren E. Burger:

Do you think there is any risk, Mr. Hellerstein, any risk that if 30,000 warrants must be obtained, if that was the figure in some relatively small metropolitan area, small geographically that the value of the warrant will be depreciated by the fact that what the police will have to do, law enforcement will have to do would be to setting motion to some of the new electronic equipment, word processing machines where you will get your warrant from the prosecutor to the magistrate the issuing officer to the police officer all transmitted by wires?

William E. Hellerstein:

Mr. Chief Justice, first of all, I know New York has a lot of crime.

I don’t know that even 30,000 warrants in the context of this case would be an accurate figure.

Warren E. Burger:

Well, I should think it sounded low to me for a city like New York.

William E. Hellerstein:

I do respect I would think it might be high insofar as we’re talking about arrest within the home that are made on —

Warren E. Burger:

No, I’m not talking about arrests, home or not home —

William E. Hellerstein:

We are —

Warren E. Burger:

— is not the issue.

William E. Hellerstein:

We’re only asking that the warrant requirement be imposed for arrest within the home —

Warren E. Burger:

Because the issue in my hypothetical question is relating to arrests.

And your — for the purposes of your case, you’re narrowing it not just to the home but to an arrest in somebody’s home, a dwelling, are you not?

William E. Hellerstein:

Addressed in a dwelling in non-exigent circumstances.

Warren E. Burger:

No.

Potter Stewart:

Mr. Hellerstein, I’m both confused and disturbed now in view of your answers to some of my colleagues questions.

You’re contending here that the constitution requires an arrest warrant.

William E. Hellerstein:

Yes, Mr. Justice.

Potter Stewart:

And then you, as I understood it to say that if a law enforcement officer is armed with an arrest warrant such as you say in this case the constitution requires.

Then he is authorized to arrest the person wherever he’s found, you said that didn’t you?

William E. Hellerstein:

He can do that without a warrant, yes.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Potter Stewart:

And does that give greater or lesser protection to the interest of homeowners if he’s armed with a warrant to arrest an individual, can he then break into every house in the neighborhood —

William E. Hellerstein:

Oh, no!

Potter Stewart:

— looking for that individual because it’s a valid arrest wherever that —

William E. Hellerstein:

Oh, no —

Potter Stewart:

— person is in fact found whatever the suspicion maybe as to whether he’s going to be there?

William E. Hellerstein:

No, absolutely not.

I’m saying that the arrest — not at all, I’m suggesting that — that in fact that’s Lang versus Gailstiene I believe in the Fourth Circuit.

That I’m saying with a warrant to arrest, you must have probable cause to believe that he has committed a crime and a reasonable basis to believe he’s in the premises where you’re going and —

Byron R. White:

Yes, but you don’t need to — have it that determined by a warrant that he’s in some premises.

William E. Hellerstein:

No, that’s by statute.

Potter Stewart:

Well no, no, no but where — not here to bother about New York statutes or the statutes of any other states.

We don’t have any business with those except as to —

William E. Hellerstein:

I was going to an assumption this be would be inserted into New York statute of law.

Potter Stewart:

— if they may involve a federal question, where — to here as to what the — does the federal constitution require?

William E. Hellerstein:

It requires an — a determination of probable cause as —

Potter Stewart:

To arrest the person.

William E. Hellerstein:

To arrest the person.

Potter Stewart:

Wherever found.

William E. Hellerstein:

Wherever found, but only if he’s in his home is a warrant required.

Warren E. Burger:

Do you —

William E. Hellerstein:

You do not require a warrant for the public way.

If you know you’re going —

Potter Stewart:

But obviously when they get the — they won’t know at the time whether the man is in his home or not in his home or maybe he’s out in the public street or some other public place —

William E. Hellerstein:

Right.

Potter Stewart:

— maybe it’s in somebody else’s home.

So what they do is get a warrant to arrest him, right, under your submission?

Does the constitution requires an arrest warrant?

William E. Hellerstein:

If they must inform the magistrate that it is to be within the home.

Potter Stewart:

Well that’s what I didn’t get.

William E. Hellerstein:

Yes, that why —

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William H. Rehnquist:

How can they know —

William E. Hellerstein:

(Voice Overlap) —

William H. Rehnquist:

— six hours in advance that he will or will not be within his home?

Potter Stewart:

Exactly.

William E. Hellerstein:

They can anticipate.

Byron R. White:

You just told me awhile ago that it need not say in the warrant that he’d — they can arrest in the home.

William E. Hellerstein:

It must say in the supporting papers that we are seeking a warrant —

Byron R. White:

I thought you said just awhile ago it did not require any showing in connection with getting in a warrant that there was probable cause to believe that he was in the house?

Potter Stewart:

That’s what I thought what you said too.

William E. Hellerstein:

No, then I —

Byron R. White:

Well you said exactly that.

William E. Hellerstein:

Then I must clarify that Mr. Justice.

Warren E. Burger:

Let me test that by this hypothetical — not hypothetical, real question.

How many warrants would you just guess roughly have been issued and are outstanding and have not yet been executed in the City of New York?

William E. Hellerstein:

By —

Warren E. Burger:

By all the policeman in New York.

William E. Hellerstein:

I have no idea.

Warren E. Burger:

Thousands aren’t there, thousands?

William E. Hellerstein:

Not arrest warrants, no Mr. Chief Justice.

Warren E. Burger:

Yes.

William E. Hellerstein:

No, I think — if you’re thinking about bench warrants —

Warren E. Burger:

When you look at the statistics and you find that at any given time in any big city there are thousands of arrest warrants outstanding and when a policeman has any doubt they have a system of checking in to see if there’s an outstanding warrant on a person they’ve stopped for a traffic accident.

Or the policemen may have six outstanding warrants in his pocket for his particular precinct or district.

They aren’t issued with the view that necessarily they’re going to be executed within 48 hours.

They may have a time limit by law, but there are a great many unexecuted warrants floating around in police departments in this country.

William E. Hellerstein:

I think those —

Warren E. Burger:

State warrants, I’m talking about.

William E. Hellerstein:

— those are essentially bench warrants which are issued for suspects.

In New York City the high statistics is not the unexecuted arrest warrant, it’s the unexecuted bench warrant where there’s been an —

Potter Stewart:

Which is an arrest warrant?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Warren E. Burger:

That’s an arrest warrant.

William E. Hellerstein:

After an accusatory instrument.

Potter Stewart:

Yes, it is an arrest warrant, isn’t it?

William E. Hellerstein:

But with respect to — I think if the officer intends to make an arrest within the home, he must come before the magistrate —

Potter Stewart:

And so what?

William E. Hellerstein:

— so stating and that he must have established on the papers that he has probable cause to believe that there is — that the defendant has committed a crime and that he has reason to belief — to believe that he is in his home.

Byron R. White:

So in a lot of circumstances then he’ll have to come back if he wants to — because you — I am sure there’ll be a lot of arrest warrants issued for — to arrest the man before they know where he is or what — where he lives or anything else if — and if they had — and if he’s got that kind of a warrant in his pocket that doesn’t authorize an arrest in a home, and you say the warrant never needs to do that.

But if he hasn’t — if there were some — if he doesn’t know that there are underlying papers that establish some reason to believe that he’s in some house like his, he’s got to go back to the magistrate and say, “I now believe this man’s at home so I want to — and I just want to tell that.

You don’t need to change the warrant I just want to tell you that.”

William E. Hellerstein:

No, I think he has to have — there has to be a connection between going to the home.

Byron R. White:

Well, does the magistrate have to agree and decide that there’s probable cause to believe that he’s in the house?

Potter Stewart:

Then at that time?

William E. Hellerstein:

No.

Probable cause?

In the sense of —

Byron R. White:

Reasonable suspicion —

William E. Hellerstein:

Reason for believe, yes.

Byron R. White:

Or then does he then have to make a decision and evidence that’s somewhere?

William E. Hellerstein:

Under our present system, yes.

Byron R. White:

Well, I know but what about the federal constitution?

Does it require him to make some conclusion or not?

William E. Hellerstein:

I think yes.

Byron R. White:

Where?

William E. Hellerstein:

Well, I don’t know in the constitution, but I think that —

Byron R. White:

Well, that’s what you’re arguing —

William E. Hellerstein:

He has to determine on the application before him, papers —

Byron R. White:

Well, where does he determine it, does he put it in the warrant?

William E. Hellerstein:

It would depend what the warrant would say.

Byron R. White:

Well, all I want to know is what you — what your submission is the federal constitution requires the magistrate to find with respect to whether or not the man is in the house.

William E. Hellerstein:

I — my submission is that it state that in time the warrant was obtained, there were two things, probable cause for the crime and reason for belief that he is at home.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Potter Stewart:

Well if — is it — would be sufficient if he just knows where his home is?

William E. Hellerstein:

Yes.

Potter Stewart:

The address of his home?

William E. Hellerstein:

Yes.

Potter Stewart:

There’s a John Smith and he lives at 2020 Main Street.

William E. Hellerstein:

Yes, like that.

Potter Stewart:

And is that enough?

William E. Hellerstein:

Yes.

Potter Stewart:

And then you say you can arrest him in public without that warrant.

William E. Hellerstein:

Yes, they can do that under Watson.

Potter Stewart:

And he can arrest him in his home only with that warrant.

William E. Hellerstein:

Right.

Byron R. White:

But you say that the federal constitution requires, like the state law, that at the time he gets there —

William E. Hellerstein:

No.

Byron R. White:

— there must be federal — reasonable cause to believe that he’s in the house.

William E. Hellerstein:

I’m sorry if I’ve confused you Mr. Justice, I thought that was what my adversary was saying.

I say the federal —

Byron R. White:

(Voice Overlap) —

William E. Hellerstein:

— constitution requires only probable cause to believe commission of the crime —

Potter Stewart:

Right, that’s an arrest warrant.

William E. Hellerstein:

— in order to enter the house.

Not that it requires that —

Byron R. White:

So the — so that — so the warrant saying really doesn’t protect the house then, it protects — it really is a protection of him personally.

William E. Hellerstein:

It’s a protection of the house insofar as the arrest is to be made there.

Potter Stewart:

It’s a protection of him —

Byron R. White:

Well, I guess —

Potter Stewart:

— if he’s in his house.

William E. Hellerstein:

Yes.

Byron R. White:

I’ll put it this way.

You submit this on your brief, your position is on here, you agree with the position you’ve stated in your brief?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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William E. Hellerstein:

Yes.

Warren E. Burger:

Do you think a warrant is in anyway infirm that it does no more than give the name of the person to be arrested without any address, without any more?

William E. Hellerstein:

That would depend what kind of a warrant —

Warren E. Burger:

An arrest warrant, an arrest warrant.

William E. Hellerstein:

I would say not necessarily if —

Warren E. Burger:

Not — well, yes or no under the federal constitution, that’s all we’re talking about.

William E. Hellerstein:

Under the federal constitution, I do not think.

I think there have to be a premises identified.

Warren E. Burger:

What, premises of the person to be arrested?

William E. Hellerstein:

Yes.

Warren E. Burger:

Well —

Thurgood Marshall:

Mr. Hellerstein —

Warren E. Burger:

— extraordinary thing.

Potter Stewart:

Whether it says John Smith and address unknown —

Thurgood Marshall:

Do you need a new —

Potter Stewart:

John Smith address unknown and his address is unknown.

William E. Hellerstein:

If that was —

Potter Stewart:

That there’s plenty of reason to —

William E. Hellerstein:

If this Court had held —

Potter Stewart:

— there’s a probable cause to believe that John Smith committed a criminal offense.

William E. Hellerstein:

If this Court had held that the warrant was required so far as the probable cause to believe commission of the crime, I think it would be sufficient, yes.

Thurgood Marshall:

What —

William E. Hellerstein:

And then the officers locating the premises could go in without warrant.

Thurgood Marshall:

Help me Mr. Hellerstein, I have never seen a warrant that said what you said, that this is a warrant for the arrest of John Doe, and if you find him in his house, you’re going to arrest him there.

William E. Hellerstein:

There are —

Thurgood Marshall:

I have never seen one like that.

William E. Hellerstein:

There are John Doe warrants Mr. Justice.

Thurgood Marshall:

This isn’t John — I mean this is James Smith.

Potter Stewart:

Right.

Warren E. Burger:

A real one.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Thurgood Marshall:

This is, what’s his name, Theodore Payton, and if you find him at home, you can arrest him at home.

I’ve never seen a warrant like that.

William E. Hellerstein:

Neither have I.

Thurgood Marshall:

I don’t know what —

William E. Hellerstein:

(Voice Overlap) —

Thurgood Marshall:

I thought you said the warrant had to say that they can arrest him at home?

William E. Hellerstein:

No, I think — what I meant to say is that the warrant had to be obtained in order for there to be an arrest within the home.

Thurgood Marshall:

Well, it doesn’t have to say so in the warrant.

William E. Hellerstein:

No.

Potter Stewart:

He can be arrested in a public place without a warrant.

He can be arrested in his or somebody else’s home only with a warrant —

William E. Hellerstein:

That is my —

Potter Stewart:

— an arrest warrant.

John Paul Stevens:

Let me be — probably repeating but it seems to me there’d been some misunderstanding.

In this very case, talking about Mr. Payton, as I understand the sequence of events they’d learned his identity at one time and his name at another time and his address at another time.

If at the time before they knew his address, they knew his identity and a probable cause to believe he was responsible for the offense and they got an arrest warrant for that person without naming an address.

They had then taken that warrant, later learned his address and broken down the door as they did in this case.

Would you concede they acted within the Constitution?

William E. Hellerstein:

If they had the arrest warrant?

John Paul Stevens:

Yes, but with no address on it.

William E. Hellerstein:

I would be reluctant to concede that Mr. Justice Stevens, because I’ve had no experience with that context.

I think that I might go so far as to say that mainly because the warrant had been obtained by a magistrate who had made the determination that there was new probable cause.

And once the determination was made by a magistrate —

John Paul Stevens:

Would you think there may be a constitutional difference between a warrant that includes the man’s address and one that does not?

That’s the delay.

Thurgood Marshall:

Where whom?

William E. Hellerstein:

I don’t think there was a difference.

John Paul Stevens:

Well, otherwise you should concede that because you have conceded, if I understand you correctly, that if the warrant includes his address that’s all that’s necessary.

They don’t know where he is.

William E. Hellerstein:

Yes.

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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John Paul Stevens:

They get a warrant to get to his — to arrest this man.

They know where he lives.

They go out the first place they look is in his home and nobody answers the door so they break it down.

You say that’s all right, but it’s not all right if they don’t know his address before they get the warrant.

William E. Hellerstein:

That’s right.

John Paul Stevens:

Is that your position?

William E. Hellerstein:

No, I think that in terms of what the constitution required a warrant —

John Paul Stevens:

That’s what we’re talking about here.

William E. Hellerstein:

— it should have the man’s address in it.

John Paul Stevens:

Well, you’re saying then that the — there’s a constitutional difference depending on whether they get his address in the warrant or not?

William E. Hellerstein:

I’m not certain of that though.

I’m not certain that is — I think the key thing is that the warrant —

John Paul Stevens:

It seems to me that if you take that position you are really agreeing with Mr. Justice White that you want some kind of constitutional protection on knowing whether he’s in the house or not, and that would be more like a search warrant.

And then you’re going to say the time you go in to get the warrant, you got to be able to predict whether he’d be in the house at the time they get there or not.

William E. Hellerstein:

Well, that’s not what I’m after.

I’m after the determination that a magistrate makes with respect to prior — to going to the home.

I don’t know what the experience would be or in the Constitution —

Byron R. White:

Well, if your big worry is having the magistrate’s confirmation as to probable cause to — that this man committed a crime, I would think you would like to urge that just generally that there just should be arrest warrants at anytime whenever you think at anytime you get them.

William E. Hellerstein:

Mr. Justice, I can —

Byron R. White:

And not just for the house if there’d be — if aim of this protection as to — is not protected — if it isn’t aimed at protecting the privacy of the home but just probable cause to commit with respect to the commission of the crime.

That’s general applicability.

William E. Hellerstein:

After the Court’s decision in Watson, I can urge that.

What I’m saying —

Byron R. White:

Well, you might be back though another day, do you?

William E. Hellerstein:

I think it’d be a while but I believe that Watson says is not required.

What I’m trying simply to say is that a warrant to enter the home is required beyond Watson.

That is — I’m not seeking a warrant for arrest.

I’m seeking for a warrant for arrest within the home.

Warren E. Burger:

Let me see if I understand the net of your argument.

Is it this that whenever there is an arrest, it can be made without a warrant only if they’re arrested in a public place?

Audio Transcription for Oral Reargument – October 09, 1979 in Payton v. New York

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Warren E. Burger:

If they are arrested anywhere else, they must have a warrant?

William E. Hellerstein:

No, Mr. Chief Justice.

I think that states it far too —

Warren E. Burger:

Well, the pieces of your argument add up to that for me.

William E. Hellerstein:

No, I’m simply saying that there can be an arrest — there can be no arrest within the home without a warrant.

Warren E. Burger:

How about his office?

William E. Hellerstein:

An office?

Depending on the nature of the office and the extent —

Warren E. Burger:

Well, where does the constitution help you there, that’s what we’re guided by.

William E. Hellerstein:

Just in the continuum of this Court’s — that’s not this case.

This Court has another decisions, afforded offices some protection under the Fourth Amendment depending on what the expectations of privacy were, who had access to the office.

I would be willing to concede that an office that was open to the public to do business was not in any way like the home.

And if that’s not —

Warren E. Burger:

The lawyer’s office, the private office.

William E. Hellerstein:

I think the interior of my office where I might work alone would have the same privacy of the home, but not necessarily where I see clients and do business.

That would be I would draw the line.

Warren E. Burger:

Some of the members of the Court would like to have an opportunity to examine those copies of bench warrants or grand jury warrants if your friend has no objection, would you leave them?

William E. Hellerstein:

I’d be most happy to leave them Mr. Chief Justice.

Warren E. Burger:

If you’ll deposit them with the clerk.

William E. Hellerstein:

I will do that.

Warren E. Burger:

Thank you.

Thank you gentlemen.

The case is submitted.