Payton v. New York – Oral Reargument – October 09, 1979

Media for Payton v. New York

Audio Transcription for Opinion Announcement – April 15, 1980 in Payton v. New York
Audio Transcription for Oral Argument – March 26, 1979 in Payton v. New York

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

Warren E. Burger:

The case is submitted.

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

Mr. Hellerstein, I think you may proceed when you’re ready.

William E. Hellerstein:

Mr. Chief Justice, may it please the Court.

These cases are before you on reargument.

They are appeals from the New York Court of Appeals which by a vote of four-to-three sustained the constitutionality of New York’s arrest statutes which allow, even in the absence of exigent circumstances, a warrantless entry into the home for the purposes of arrest.

To briefly state the facts which I think in both cases are manifestations of the operations of the statute, that in real terms demonstrate the importance of the warrant requirement which I think this Court will require or should require.

In the Payton case, you had a situation where on January 12, 1970 there was a homicide in the course of a robbery on an Upper East Side gas station in New York City.

Two days later, the police — the investigating police obtained information as to who they could believe was probable cause may have committed the crime.

That information led them that day to go to the premises — to have the premises pointed out to them and to do nothing, to spend the rest of the afternoon, the entire evening, until 7:30 the next morning when in a substantially large group of detectives, they went to the premises, an apartment on the fifth floor in a building in the South Bronx — in Manhattan, I’m sorry.

And after trying to force the door open and unable to do so, called for assistance which arrived a half hour later and with the use of crowbars the door was forced open.

Once the police entered the premises and they saw that Mr. Payton was not even there, they proceeded to ransack the apartment, seized a number of items which — all of which was suppressed by the trial court on consent on the prosecution except for a 30 caliber cartridge that was found in plain view on top of a stereo set.

The lower courts and the majority of the New York Court of Appeals, finding that the police were lawfully in the premises since they did not need a warrant, could have seized what they saw in plain view.

The Riddick case is another — more striking in some respects example of the essentiality of a warrant requirement.

In Riddick, the crime was committed four years prior to the arrest.

The police have probable cause and could’ve known and could’ve gotten Mr. Riddick a long time before they went to his apartment.

They waited two months before they decided to arrest him in his apartment without a warrant, even though they knew his address.

They went in, his three-year-old son answered the door, they entered, Mr. Riddick was sitting in his bed with some underwear on but naked to the waist, and he was arrested.

I think the entries in both of these cases are cardinal examples of why as I understand where this Court has gone so far with respect to warrants, the warrant requirement should and must be imposed with respect to entries in non-exigent circumstances into private premises.

William H. Rehnquist:

Well, if the police, they’d had a warrant, that wouldn’t have presented — prevented them from arresting the latter respondent — rather latter petitioner in his underwear, would it?

William E. Hellerstein:

No, Mr. Justice Rehnquist.

They — they didn’t arrest him in his underwear.

I mean, they let him get dressed to leave.

I just — the reason I emphasized factually underwear is we’re talking about the home and these are — this is the heart of privacy.

And in order to enter a home and to seize citizens in that context I think, as I understand the warrant requirement, it has always been to ensure that a magistrate has determined that before that type of entry is made the probable cause determination should be made by someone other than a police officer who has to make subjective judgments that are not always correct.

Potter Stewart:

In each case —

Harry A. Blackmun:

You’d make the same argument —

Potter Stewart:

In each of these cases —

Harry A. Blackmun:

— if this were a motel?

William E. Hellerstein:

Excuse me.

Harry A. Blackmun:

You would make the same argument if this were a motel?

William E. Hellerstein:

Oh, yes, I would, Mr. Justice Blackmun, depending on the expectation of privacy because that — the residents of that motel room would have.

Harry A. Blackmun:

So then — so that the word “home” doesn’t have any particular magic in it?

William E. Hellerstein:

I think that the Court has said quite clearly that the Fourth Amendment protects people, not places.

But people in the context of where their expectation of privacy is of the highest and we would draw no distinction with respect to motels and homes but the actual residence, and I think a motel room can be a home for — the time and person who’s there, but there would be no distinction.

Potter Stewart:

In each of these cases, the petitioner about — is both Payton and Riddick, were arrested in their — respectively in their own residences, were they not?

William E. Hellerstein:

No, Mr. Payton was not — he turned himself in.

He was not home —

Potter Stewart:

Oh, that’s right.

William E. Hellerstein:

— when the —

Potter Stewart:

But in any event, the entry was into the residence of each —

William E. Hellerstein:

Yes.

Potter Stewart:

— of Payton and —

William E. Hellerstein:

And Riddick.

Potter Stewart:

— Riddick as well.

William E. Hellerstein:

Yes, that’s correct, Mr. Justice Stewart.

Potter Stewart:

And in each case the residence was what, an apartment in New York City?

William E. Hellerstein:

In Payton, it was a multiple tenement, multiple dwelling tenement, fifth floor, apartment 5-A.

I’ve not seen the premises but I think it’s a typical New York, Manhattan tenement.

In Riddick, it was a two-family private house in Queens.

Potter Stewart:

Half a house.

William E. Hellerstein:

Half a house.

The majority below approached the case along the lines that an entry to arrest was less intrusive than an entry to search.

That was its first premise.

Its second premise was that an arrest in the home is less embarrassing than an arrest in public and therefore this Court’s concern in Watson was even less forceful.

I — for reasons I’ll state, I disagree with both.

And again, the Court of Appeals thought that the common law was very one-sided in terms of trying to ascertain the intent of the framers that it was one-sided, that the common law allowed entries.

I submit, I think in our brief extensively we come to quite an opposite conclusion.

So we think these assumptions were wrong, erroneous.

I think it’s noteworthy that since the opinion of the Court of Appeals in this case, a number of courts, High Appellate Courts have refused to follow it, I think because it’s a bitter pill for a lot of courts to follow, a warrantless entry of this kind.

William E. Hellerstein:

And the Eighth Circuit has just recently, in the Houle case, which is in our supplemental brief, refused to allow warrantless entries and the High Courts of Wisconsin and Pennsylvania also refused to follow the Payton case as decided by the majority.

There’s some significance I think in at least the sensitivity of a number of courts both state and federal to the issue.

Our basic line, basic view is that if one thing is clear about this Court’s decision is — is it that physical entry of the home is the chief evil against which the Fourth Amendment stands and that’s what this case is about.

And the arrest warrant provides protection at the very least against that type of entry without a magistrate determination that on the facts known to the officer there is probable cause to believe a defendant has committed a crime.

I think for us the logical starting point for our argument has to be the plurality opinion in the Coolidge case, where the Court said that the notion of a warrant was entry to arrest was per se at odds unreasonable in line of the Court’s decisions and absent well-defined exigent circumstances there could be no warrantless entry.

And further than the Coolidge case, the Court said that Warden versus Hayden, which has come to be known as a “hot pursuit” type of case, stands by which negative implication that an arrest warrant is required.

These two statements of the plurality in Coolidge have led most if not all, but a substantial and predominant number of courts to read the language in Coolidge to come to a conclusion quite opposite that reached by the majority below.

And we think —

Byron R. White:

You think what?

These — these courts have come to what conclusion?

William E. Hellerstein:

Quite opposite than that of the Court of Appeals.

Byron R. White:

Which is what?

William E. Hellerstein:

Which is that a warrant is required.

Byron R. White:

What kind of a warrant?

William E. Hellerstein:

That I think, Mr. Justice White, is a little more difficult question than the issue of where there’s a warrant.

Byron R. White:

Oh, I just asked you what the — I didn’t want to argue — what is of — what are those cases that (Voice Overlap)?

William E. Hellerstein:

Most courts have held that an arrest warrant.

The Ninth Circuit, in United States versus Prescott, has said we don’t care what you call it as long as it has two things.

It requires a determination by the magistrate as to entry of premises as well as probable cause for a crime.

But most courts either gloss over what type of warrant or specifically say an arrest warrant.

The Second Circuit which —

Byron R. White:

Which is just a probable cause to believe that this particular person committed a crime?

William E. Hellerstein:

Yes.

Byron R. White:

Not that he’s in the house.

William E. Hellerstein:

Not that he’s in the house.

That is the determination when it’s an arrest warrant, that when the warrant is being executed by the —

Byron R. White:

Does any — does any court that you know require search warrants?

William E. Hellerstein:

The Ninth Circuit requires a warrant that requires the magistrate to do both.

A number of other —

Byron R. White:

Which is — to do — to do both what, the probable cause to —

William E. Hellerstein:

Merely a search warrant.

Byron R. White:

— to enter the house because there’s probable cause to believe —

William E. Hellerstein:

Right.

Byron R. White:

— the man is there?

William E. Hellerstein:

Yes.

Byron R. White:

Is that your position?

William E. Hellerstein:

My position is that maximally a search warrant would make the most sense in terms of the —

Byron R. White:

Well, how about minimally?

William E. Hellerstein:

Minimally an arrest warrant plus reasonable cause when that warrant is executed by the officer that believed that the defendant is in the premises.

Byron R. White:

So you’re — minimally the Ninth Circuit position.

William E. Hellerstein:

No, the Ninth Circuit would go a little bit more, and I would be glad to have it, but I would take the position that I think at least touched upon in this Court’s opinion in the Dalia case in —

Potter Stewart:

Which case?

William E. Hellerstein:

Dalia v. United States, the surreptitious entry case, where Mr. Justice Powell, writing for the Court, specifically noted that an arrest warrant, first of all, was not a useful document.

Secondly, that a magistrate cannot always focus on every aspect of the privacy intrusion but that the important thing is that there’s an arrest warrant in the officer’s hand.

Now, as far as I see it in a case such as this, where no warrant at all is required as a predicate for entry, at the very least the Fourth Amendment should require and does require an arrest warrant.

Byron R. White:

Mr. Hellerstein, are there some courts that say — that say that all you need is an arrest warrant or that — let’s say — say there is a court that says you need only probable cause to enter the house, you don’t need an arrest — a warrant at all.

William E. Hellerstein:

Right.

Byron R. White:

But do they say — don’t some of those courts say you — at the time that you entered the house you must have probable cause not only to arrest but to believe the man is in the house?

William E. Hellerstein:

I think, yes.

I think there is a — I don’t recall if they specifically talk about the second aspect, but I would say would be fair to guess that even a court such as I think the Seventh Circuit which does not require a warrant, would say that even though you’re going with probable cause on the crime, you also have to believe that the fellow was on the premises.

Potter Stewart:

Is that what the New York courts held here?

William E. Hellerstein:

The New York — that issue did not come up in terms of these cases.

Thurgood Marshall:

Because in Payton the — the light was on and they heard a radio or something.

William E. Hellerstein:

Yes.

So I would —

Thurgood Marshall:

So they did have a reason to believe there was somebody in there.

William E. Hellerstein:

Yes, Mr. Justice Marshall.

Potter Stewart:

In each of these cases, you — do you concede that there was probable cause?

William E. Hellerstein:

For the crime.

Potter Stewart:

Yes, and therefore that an arrest warrant could have properly issued?

William E. Hellerstein:

Yes, I do, Mr. Justice Stewart.

I think the information as to both — both officers.

Lewis F. Powell, Jr.:

What about probably cause to believe that somebody is on the — that the defendant is in — on the premises?

William E. Hellerstein:

I think that the officers had they gotten a warrant would have — if it was an arrest warrant, would have had probable cause in both cases to execute that warrant.

And I think —

Lewis F. Powell, Jr.:

So that the — the narrow issue here is whether you need some kind of a warrant.

William E. Hellerstein:

Yes, that’s correct.

William H. Rehnquist:

Mr. Heller — Mr. Hellerstein, earlier in your argument you placed great stress on the — using Coolidge versus New Hampshire, Justice Stewart’s opinion as a starting point.

I take it Justice Harlan’s concurring opinion wasn’t necessary to make that a majority opinion?

William E. Hellerstein:

Yes, and —

William H. Rehnquist:

And as I — as I read his opinion, he starts out saying from the several opinions that have been filed in this case, it is apparent that the law of search and seizure is due for an overhauling, that’s his — then he goes on and says, I would begin this process of reevaluation by overruling Mapp against Ohio and Ker against California.

Now, I take it if one were to follow Justice Harlan’s views, which were necessary to make a majority, you wouldn’t have much of a case.

William E. Hellerstein:

I guess it would depend upon the composition of the Court at the current time, first of all, Mr. Justice Rehnquist.

I think that — and I don’t presume to speak for Mr. Justice Harlan that the considerations which he spoke to in those cases were his views of federalism in the role of the Fourth Amendment, and I know that you for one do share perhaps with respect to Mapp at least that view.

But I don’t — I think also that Mr. Justice Harlan was — was extremely sensitive as he said in Jones, too, forcible entries into the home to make an arrest, and said that a grave constitutional question was presented by that issue which is the issue we have here.

The approach which the Court of Appeals below took in the majority opinion by Judge Jones really I think denigrated or underestimated tremendously the nature of an arrest entry.

I mean, to be able for the Court — for the Court to be able to say that an arrest entry, it was less intrusive than a search entry, just doesn’t square factually with the — what we know about arrest entries or in fact, the facts of this case.

First of all, when a police enter a dwelling, as they did in these cases, they’re affecting the privacy of all of the people where there may be more than just the defendant.

But the manner of the entry is not designed to safeguard the privacy interest and to minimize it.

We have in our brief cited manuals, standard operating manuals of what police are supposed to do when they go into premises to arrest for a felony, they protect themselves that are fanned out, engage in protective sweeps.

That’s — that’s pretty intrusive and can be very often much more intrusive than a search which if you find the item or items that are specified in the search warrant can be very unobtrusive.

The entire premises are open to scrutiny, items that people hold dear to them that are private, have nothing to do with whatever they’re being sought for, or can be seen by officers.

A search incident to an arrest can be very intrusive.

On the other hand, a search can be minimal.

There was nothing minimal about the entries in these two cases.

Potter Stewart:

Well, in these two cases, even if the state is correct, that wouldn’t lead to a lot of intensive indiscriminate searching.

The search incident to the — to the arrest would be limited by the contours delineated in the Chimel case.

William E. Hellerstein:

Yes, Chimel.

Potter Stewart:

And — and anything else would just be subject to plain view.

William E. Hellerstein:

That’s correct.

Potter Stewart:

Isn’t that right?

William E. Hellerstein:

But I think what’s important is the point that —

Potter Stewart:

You don’t have here, even if the threat is — if the state is correct, a threat of an intensive search throughout the house.

William E. Hellerstein:

Well, you have that — I think that’s the point that Chief Judge Cooke was trying to make his — in his dissent.

And I think there’s some value in it.

He said if the officers here had an arrest warrant, they would’ve known in Payton that they were going to arrest Payton.

Potter Stewart:

Right.

William E. Hellerstein:

They wouldn’t — not have —

Potter Stewart:

And that that was their only purpose.

William E. Hellerstein:

Right.

Potter Stewart:

Any search would be limited to the —

William E. Hellerstein:

What they plan —

Potter Stewart:

— the limitations of Chimel plus they could have seized anything in plain view.

William E. Hellerstein:

That’s correct.

Potter Stewart:

If the state is correct, period.

William E. Hellerstein:

Yes.

Potter Stewart:

Is that right?

William E. Hellerstein:

That’s correct.

But I think it was — it was sort of a — in a way a psychological point that the Chief Judge was making and that is the warrant itself has a value of limiting, telling the officers a directive that when you are — you have this fellow, you have probable cause to believe he’s committed a crime, you go and arrest him, that’s all you are supposed to be doing.

And we’re not going to leave it to the — you know, suppression at a trial to take care of everything else you ransacked the place for.

That I think was the —

Warren E. Burger:

Well, the plain view doctrine would be an exception to all of that.

William E. Hellerstein:

Yes, yes.

Warren E. Burger:

If while they’re standing inside the door of the arrestee, and says let me get my clothes on, they see a pistol or whatever, they can take, of course, can’t they?

William E. Hellerstein:

Yes.

I’m not saying if (Voice Overlap) —

Potter Stewart:

If they’re lawfully there.

William E. Hellerstein:

If they’re lawfully there.

Our position is that in this case they were not lawfully there without a warrant.

And as I stated earlier, as I see it, the minimum requirement is for an arrest warrant, if what this Court albeit in plurality or even in the majority in the Dalia case have given meaning to an arrest warrant, then that is the kind of warrant that should be required and is required with respect to arrest entries.

Potter Stewart:

How about arresting somebody in the third person’s home?

William E. Hellerstein:

There I think, at least in terms of the way scholarly discussion has gone, in some Circuits, such as the Third Circuit, there is a greater concern that in that situation particularly, perhaps only a search warrant will do the job because — of the concern is that there the magistrate is not even focusing on the person whose premises it is.

I don’t think this Court has to get into that in this case.

This is — these two cases involve arrest entries, of premises —

William H. Rehnquist:

Would the magistrate ordinarily focus on whose home other than his own the person might be in?

William E. Hellerstein:

Not in an arrest warrant context.

He would if it were — if he were required to get a search warrant.

The —

Potter Stewart:

You’d be satisfied with an arrest warrant even to support the search, the breaking in of the home of John Smith because the officers suspected that the object of the warrant might be there?

William E. Hellerstein:

Some courts have so held —

Potter Stewart:

Or likely Mary Smith?

William E. Hellerstein:

Some courts have so held that again and I think the logic for it would be that it still requires, once you have the valid arrest warrant, judgment left in the officer under an arrest warrant that the person is in the premises sought must be based upon probable cause.

I don’t think that’s an optimum solution.

I want to make myself clear.

But for the purposes of this case and the issues presented, I don’t think I’ve got to convince you that you need go further.

I — I should point out that the Court has amended Rule 41 of the Federal Rules of Criminal Procedure to provide for search warrants, not arrest warrants, when persons are being sought, without limiting it to third person premises.

I can only say that there’s logic to that amendment.

It would be wrong for me to say anything other than that.

But furthermore, that if the Court had a desire to harmonize Rule 41 which at least you at times said implemented Fourth Amendment concerns, then the most sensible reconciliation of this difficult issue would be to require a search warrant so that Rule 41 would totally conform with what the Fourth Amendment requires, but I do not think it is necessary for this case.

The prosecution — my adversary, Mr. Zimroth talks a great deal about the burdens to police if you impose either type of requirement.

I know that in the warrant context you heard that argument many times and you’ve rejected it many times.

And you’ve rejected it many times because you placed the importance of that warrant requirement in our constitutional scheme in a very high level.

And when you combine that with the home, the premises, parts of the home, I think the prosecution has — should have an insurmountable burden in terms of policy arguments.

If we start with the premise that we’re talking non-exigent circumstances, then I can see no weight at all to Mr. Zimroth’s argument that a warrant requirement imposed by this Court would be a burden to any legitimate concern of police officers.

Because if it’s not exigent, circumstances are not exigent, then the police have time to do a number of things.

And I think these two cases pointed out — in Riddick they had an awful lot of time to take a slight detour and get an arrest warrant.

William H. Rehnquist:

But in our Watson decision, certainly we didn’t decide that on the basis that it would be just a terrible burden on the police to go get a warrant to arrest a man in a public place.

We went on the tradition that it had always been done that way, and that is what the Constitution must have meant?

William E. Hellerstein:

I think in Watson you must have felt yourself freer to do it based on the fairly one-sided, almost exclusively so, history of the common law with respect to arrest issues.

That is not so with respect to going to homes to make arrests.

William E. Hellerstein:

I think that at the very least, and I think the Court in Miller v. United States a long time ago, 1957, pointed out that the law with respect to arrest entries into the home was not letter clear.

William H. Rehnquist:

Miller was a statutory —

William E. Hellerstein:

Yes, that was Section 3109.

But in a footnote, Mr. Justice Brennan writing for the Court acknowledged — first of all, he pointed to Judge Prettyman’s opinion in the Accarino case which Judge Prettyman I think makes a very substantial brief that the common law was very one-sided our way.

And if I had to argue that I would, but I don’t think that what was available to the Court in Watson, the clarity of the common law going the other way, can possibly be available here, and it’s not.

Warren E. Burger:

Don’t you think it is quite important that under Section 3109 Congress had given specific instructions to federal officers as to the precise, very precise manner in which the warrant was to be executed?

William E. Hellerstein:

That was with respect to knock and announce and —

Warren E. Burger:

It was more than that —

William E. Hellerstein:

— knocked —

Warren E. Burger:

— announced their purpose and their —

William E. Hellerstein:

Purpose and authority, yes.

Warren E. Burger:

— authority and their identity —

William E. Hellerstein:

Yes, Mr. —

Warren E. Burger:

But I think the opinion said a few more words would have sufficed

They announced part of what the statute required but not all, if I recall it correctly.

William E. Hellerstein:

I think the Court was quite clear in Miller that that was a very important intent meant by Congress in 3109, but what was not before the Court —

Warren E. Burger:

Congress had expanded what the Constitution required.

William E. Hellerstein:

Well, the Court did not hold in Miller, as I understand it, Mr. Chief Justice, that it was construing the Constitution in terms of knock and announce.It was —

Warren E. Burger:

No.

No, I say Congress had expanded what the Constitution required and the — and the officers had not met that expanded requirement.

William E. Hellerstein:

That may well be.

It may well be.

But that had nothing to do with the issue in this case in the sense that the question of being able to enter without a warrant was not presented.

The prosecution in closing out its brief, I don’t think the arguments of a rush to get the warrant if we’re not talking about exigent circumstances can be very substantial.

It talks about such things as the rubber stamp, that if you hold a warrant is required for felony arrest within the home in this case, the magistrate is going to begin to rubber stamp these things.

I think that is entirely out of sync.

It’s not synchronized with what this Court feels about the role of magistrates and the importance of the independent judgment of the magistrate.

Another argument that the prosecution makes is that if you require a warrant, I call it the irrevocable arrest of the innocent argument, which Mr. Zimroth puts forth, that once a warrant is issued it must be executed, that if an officer gets a warrant that says you are directed to bring to the court this fellow, he must do so, but that is not true.

It’s not true under the New York law.

It’s not true under any law that I know.

William E. Hellerstein:

If — if an officer gets information that undercuts the basis for that warrant, he isn’t obligated to go and arrest an innocent man.

The — there are two arguments that the prosecution makes that —

Potter Stewart:

But he still authorize to arrest the innocent — the man he —

William E. Hellerstein:

He’s authorized.

Potter Stewart:

— that he now thinks is — whom he now thinks is —

William E. Hellerstein:

Yes, but he doesn’t have to do it.

He can cancel it.

Potter Stewart:

It’s — it’s an authorization, not a —

William E. Hellerstein:

Yes.

Potter Stewart:

— not a command.

William E. Hellerstein:

Yes.

Potter Stewart:

That’s your point.

William E. Hellerstein:

It’s a process.

The last two arguments which Mr. Zimroth makes is that if you require a warrant you’re going to reduce the scope of suppression hearings because there’ll be less for us defense lawyers to do.

And to that — tied to that is the reduction of possible damage suits against officers because they now have warrants.

I should have thought of those arguments.

I’m sorry I didn’t in my brief.

But those seem to be exactly the kinds of arguments that should come as a logical consequence of the warrant requirement should be a desirable outcome.

Why should we have to have extensive suppression hearings based on who did what and whom, and what if there is a warrant that a magistrate passed upon?

More importantly, why should police have to be at their peril with respect to making these judgments?

William H. Rehnquist:

Wouldn’t it just transfer all of the focus of the suppression hearing from the grounds from the — for the warrant to whether or not there were probable cause to enter the home though?

William E. Hellerstein:

I — I — it’s been my experience that hearings which are directed to controverting warrants, and my experience has been greater in the search warrant area, are much more limited, namely they really go to the — whether it’s perjury in the underlying affidavits.

They do not rehash all of the factual determinations which were presented to the magistrate unless there’s a — I think this Court has so held —

Potter Stewart:

Well, Aguilar and — held more than that.

William E. Hellerstein:

But I — I think that —

Potter Stewart:

Held that a — a warrant —

William E. Hellerstein:

These are policy arguments and simply do not support the source from which they come is my only point.

That being the case, I’d say none of the policy arguments are worth this Court declining to follow the logic of its prior decisions and to hold that a warrant is required in non-exigent circumstances for an arrest in the home.

Warren E. Burger:

Mr. Zimroth.

Peter L. Zimroth:

Mr. Chief Justice, may it please the Court.

Peter L. Zimroth:

Mr. Hellerstein is asking this Court to — in a very drastic manner change the balance of accommodating interests that have been with us from the earliest of recorded history on this subject until relatively recently.

The accepted manner in which the lawfulness of an entry to a home to make an arrest for a felony was quite clear, and that is that the officers brought the defendant into custody and then the judicial system mobilized in a very substantial manner to test two things, first the factual predicate for the arrest, and, second, the manner of execution of the arrest.

This was a judgment of people who were very sensitive to the needs of privacy.

In fact these very same people created the protections that subsequently became the protections of the Fourth Amendment with respect to search warrants.

And in fact, this system that I have outlined, if I may borrow the words of Mr. Justice Powell in the Gerstein against Pugh case, where he said there are indications that the framers of the Bill of Rights regarded it, meaning this system that I’ve just outlined, as the model of a reasonable seizure under the Fourth Amendment.

Mr. Hellerstein I think is simply incorrect when he says that there was a substantial dispute about this prior to the adoption of the Fourth Amendment.

There were many disputes about the manner in which the lawfulness of arrests were to be tested, but those disputes were about the standards to be applied in the litigation after the defendant was brought into custody and not disputes about whether or not there should be a magistrate interposed in the on-going system of — the on-going investigation.

The entire — the common law authorities and the framers of the Fourth Amendment recognized that this was an accommodation of competing interests.

It was a substantial protection against illegal arrest in the home and elsewhere.

There was an additional protection of — against illegal arrests in the home by the requirement that the officers knock and announce their authority as Mr. Chief Justice mentioned earlier which is now law in most states, in many states by statute, and the purpose was to minimize the need for force, to give the people inside the ability to submit peacefully to the authority of the officer, but again these standards were tested in litigation after the defendant or the suspect was brought into custody.

The entire burden I think of Mr. Hellerstein’s argument is that we have a search warrant requirement and therefore we must have an arrest warrant requirement.

And if I may summarize the many reasons I think that those two powers and warrants are vastly different before I get into the argument.

In the first place, the community — the community’s interests are vastly different in the two kinds of powers.

The effect on the law enforcement functions are vastly different.

And, thirdly, the search power is much more extensive and more intrusive than the arrest power and the need for a warrant requirement is much greater.

These are the very reasons why the two powers have been treated differently for so much of our history.

Mr. Hellerstein says that there will be no burden on law enforcement if you interpose a magistrate before the arrest.

This Court has examined that argument twice relatively recently, once in Gerstein against Pugh, where Mr. Justice Powell called this an intolerable handicap for legitimate law enforcement.

That characterization was repeated in Watson both by the majority and then by Mr. Justice Powell in concurrence again where he said that the interposition of a magistrate will “severely hamper effective law enforcement,” and in fact it would severely hamper effective law enforcement.

Any warrant requirement will have to be seen from the perspective of the police officers who are going — going to have to live with this requirement.

Just as an example, where Mr. Hellerstein criticizes the police in Payton for not getting a warrant after the afternoon of January the 14th.

He says that they knew the name of the defendant and that they knew — they looked at his building and he says they did nothing.

He says they did nothing after that until the next morning.

Well, that’s simply untrue.

What they were doing is further investigation, and it’s the kind of investigation that should be fostered by this Court, and the police should not be diverted from that kind of investigation in order to go get a warrant which would be a very time-consuming process.

In fact, what they were doing was trying to put together a photo array so that they could know what the defendant looks like and also what they were doing is to try to find out where the defendant was.

Knowing where the defendant’s apartment is, is very different from knowing where the defendant is.

Here, we have a defendant who two days earlier shot and killed the manager of a gas station and on that same night he goes to his friend and admits to the friend that he did it and also tells the friend that he is going “somewhere.”

This is the same defendant who must have known that two, perhaps three people in the gas station knew this defendant.

It seems to me knowing the defendant’s address in a circumstance like that is, as I say, very different from knowing where he is at any particular moment.

Peter L. Zimroth:

And it also seems to me that that is exactly the kind of situation in which the police should be encouraged to do further investigation and should not be diverted from that investigation by the very time-consuming process in which a warrant would be.

Thurgood Marshall:

How long does it take to get a warrant in New York?

Peter L. Zimroth:

Mr. Justice Marshall, in this particular case, since there was no warrant requirement, there’s nothing in the record.

However, in a case in the —

Thurgood Marshall:

But since you and I both know Manhattan, I wonder how (Voice Overlap) long —

Peter L. Zimroth:

I figure it would take be a very substantial amount of time.

Can I go through for you what steps would have to — the police would have to do to get a warrant so you could see how substantial it would be?

The first thing the police would have to do from the moment they decide, well, now is the time we have to get a warrant, is they would have to gather together all the facts.

Now, in this particular investigation there were many police officers who were doing this investigation, not just one.

They would have to gather those facts and put them into some presentable form to present to a prosecutor, not to a judge but first to a prosecutor.

And the reason for that is that under New York law, as is true in some other states, you cannot get an arrest warrant until you initiate the criminal prosecution.

That is not a police decision, that is a prosecutorial decision.

So you have to take all of those facts and you have to go down to the prosecutor’s office.

Now, I have personally been involved in questioning police officers about their investigations.

It is not a process which any responsible prosecutor would just slough off because it is the initiation of a criminal prosecution that is at stake.

It is — and it is the more complicated the investigation, the more complicated the questioning of the prosecutor.

Thurgood Marshall:

Did he do all of this before he broke in the man’s door?

Peter L. Zimroth:

Your Honor, you — he did — he didn’t —

Thurgood Marshall:

Did he do all of this before he got the crowbars and tore the man’s door off?

Peter L. Zimroth:

No, sir, he did not.

There was no warrant requirement.

Thurgood Marshall:

Yes.

But — well, shouldn’t he have?

Peter L. Zimroth:

No, sir, he should not have because if —

Thurgood Marshall:

He shouldn’t have thought over very carefully as to whether he had the right man or not?

Peter L. Zimroth:

Oh no, no.

Of course he should’ve thought very carefully whether he had the right man.

Thurgood Marshall:

That’s right.

I thought so.

But after that couldn’t he have just dropped by the magistrate’s office?

Peter L. Zimroth:

Absolutely not.

He cannot drop by the magistrate’s office.

He has to first drop by the prosecutor’s office and be —

Thurgood Marshall:

Well, did he drop by the prosecutor’s office before he tore the man’s door down?

Peter L. Zimroth:

No, sir.

Thurgood Marshall:

He — so he can tear the man’s door down without going by the — not only without getting a warrant, but he doesn’t even have to check with the prosecutor to tear a man’s door down.

Peter L. Zimroth:

Under the — under the law (Voice Overlap) —

Thurgood Marshall:

Isn’t that your theory?

Is that your theory of the law in New York?

Peter L. Zimroth:

Absolutely, it is, yes.

After — after he goes to the prosecutor’s office in order to get a warrant, there’s still much more that has to be — that’s — then at that time you first get into the problem —

Lewis F. Powell, Jr.:

Mr. Prosecutor, may I just to be sure I follow your argument.

Are you saying in substance that there are a good many cases in which police officers think they have probable cause but the prosecutor says there isn’t enough here to justify a warrant?

Peter L. Zimroth:

No, sir, there are — but there are cases in which the prosecutor would say you have probable cause but I’m not going to authorize the initiation of a criminal prosecution because I don’t think we have enough to convict.

Lewis F. Powell, Jr.:

Well then in those cases would it be appropriate for the police officer to go out and arrest him?

Peter L. Zimroth:

Yes, it might.

It might because — for example, one reason might be that — a typical situation is if there’s been a photo array, as there was in this case.

We know as prosecutors that photo arrays, although they amount — they may amount to probable cause, are not the most reliable in terms of convicting — convincing a juror — a jury.

The police may have to get the defendant into custody first so that they can have a lineup.

But once they have a lineup and if the defendant picks the — if the complainants pick the defendant out of the lineup, well then you obviously have a much stronger case.

So all I’m suggesting is that this warrant process is not a one, two, three affair.

It’s a very time-consuming situation —

Potter Stewart:

I don’t know that you finished really.

You say — you say that’s a several step process, and I think you’ve just given us the first step, you go to the prosecutor.

Peter L. Zimroth:

Right.

Potter Stewart:

And I assume you persuade the prosecutor that there is enough —

Peter L. Zimroth:

There then you have —

Potter Stewart:

— evidence for him to initiate a criminal prosecution.

Then what?

Peter L. Zimroth:

Well then you have all of the paper work that’s attendant upon filing the case in court, and if you’re lucky the court will be open at that time, you can’t get the —

Potter Stewart:

And this is a matter of New York law, as a matter of New York law, all of this has to precede the issuance of an arrest warrant?

Peter L. Zimroth:

Yes, sir.

Potter Stewart:

Is that your point?

Peter L. Zimroth:

Yes, sir.

You can’t have an arrest —

Potter Stewart:

Or constitutionally it doesn’t.

Peter L. Zimroth:

No.

Potter Stewart:

It’s just a matter of New York law.

Peter L. Zimroth:

Yes, but —

Potter Stewart:

I mean, the practice and procedure.

Peter L. Zimroth:

It’s a matter of the New York law which says that you can’t get an arrest warrant until you have a criminal action that’s begun.

That’s true.

Potter Stewart:

Initiated.

Peter L. Zimroth:

Initiated, that’s true.

Potter Stewart:

So then — then the prosecutor files the —

Peter L. Zimroth:

I don’t know how many other states have that, but I do know that New York is not alone in that.

Potter Stewart:

Well, so he files an information, New York is not required a grand jury indictment, does it?

Peter L. Zimroth:

For — ultimately for a felony, yes, there has to be —

Potter Stewart:

But for this — for the purposes of a search warrant, it can be just on information.

Peter L. Zimroth:

An arrest warrant, yes.

Potter Stewart:

I mean, an arrest warrant.

Peter L. Zimroth:

Yes.

Potter Stewart:

And then an information is filed and then what happens?

Peter L. Zimroth:

Well, then the grand —

Potter Stewart:

(Voice Overlap)

William H. Rehnquist:

(Voice Overlap)

Peter L. Zimroth:

— then the case would go to a grand jury.

Oh, you mean in terms of —

Potter Stewart:

To get an arrest warrant.

Peter L. Zimroth:

To get an arrest warrant, you go into court and you have to docket the case and then you have to wait your turn on the calendar, you go before a judge and the statute then says of the judge —

Potter Stewart:

Who’s — who’s “you” now?

Who has to wait (Voice Overlap) —

Peter L. Zimroth:

The prosecutor and the policeman —

Potter Stewart:

The prosecutor or the policeman?

Peter L. Zimroth:

Well, it will be a prosecutor or probably and a policeman.

And then you go into court and if the judge — who by the way is doing a lot of other things at that time, will see you, he — he then has the — well, now he has the option to question the police officer or question the basis.

Prior to this criminal procedure law, there was some suggestion in the law that he was required to go beyond just what was before him on papers and question the police officer, and then if he was satisfied that there was probable cause he would issue the warrant.

Potter Stewart:

And only a judge can issue a warrant in the State of New York?

Do you have magistrates or —

Peter L. Zimroth:

Well, the magistrates are the criminal court judges.

Potter Stewart:

Period, there are no other magistrates, is there?

Peter L. Zimroth:

In New York City, I’m pretty sure that’s true.

I don’t —

Thurgood Marshall:

You (Voice Overlap) —

Peter L. Zimroth:

I’m not positive about upstate —

Thurgood Marshall:

Are you telling me there are no magistrates in New York City?

Peter L. Zimroth:

I’m saying that the magistrates are the criminal court judges, which is the —

Potter Stewart:

And only they —

Thurgood Marshall:

Aren’t there magistrates holding magistrates courts?

Peter L. Zimroth:

Those courts have been abolished.

Now, it’s a — it’s the —

Thurgood Marshall:

Well, it’s the same man who’s now a judge?

Peter L. Zimroth:

Yes, sir, the same man is now a judge.

Byron R. White:

Mr. Zimroth, the Second Circuit doesn’t seem to be too worried about the impact of such a constitutional holding on police practices on New York.

Peter L. Zimroth:

No, and (Inaudible)

Byron R. White:

What?

Peter L. Zimroth:

Yes, (Inaudible)

Byron R. White:

Oh, I know, but they know that in — that on habeas corpus they’re going to be facing this same issue out of the New York courts.

And I suppose they’re not going to say that it’s unconstitutional for Federal Marshals or the FBI to arrest without a warrant, and yet it’s all right for a state officer, aren’t they?

Peter L. Zimroth:

I can’t account for their decision except it’s suggested that it’s —

Byron R. White:

And there are — and certainly the people who have joined in those opinions in the Second Circuit have been — they’re New York lawyers.

Peter L. Zimroth:

But their experiences are really with a different system, Your Honor.

It’s a — I was an Assistant United States Attorney and now I’m a state prosecutor.

It’s a world of different.

I mean, the resources are much different —

Byron R. White:

Have they — have the Second Circuit or the federal courts applied the Second Circuit rule in federal habeas corpus proceedings?

Peter L. Zimroth:

No, I’m not aware of any —

Byron R. White:

Well —

Peter L. Zimroth:

I’m not aware of any decision and also my colleague points out to you that I think they would be foreclosed from applying this rule in federal habeas corpus —

Byron R. White:

In Stone.

Peter L. Zimroth:

— in Stone against Powell.

Byron R. White:

Yes, I know that.

Peter L. Zimroth:

So —

Byron R. White:

Very quick. [Laughter]

Peter L. Zimroth:

So it’s a very different —

Warren E. Burger:

Meanwhile, while all of these things are going on, what’s happening out at the ranch, as it were?

Peter L. Zimroth:

That’s exactly the problem.

Warren E. Burger:

What’s — what is happening?

Peter L. Zimroth:

Well, what could be happening is that the — is that the defendant could be escaping.

Warren E. Burger:

Well, they could — I suppose they could get four or five policemen and surround the house, couldn’t they?

Peter L. Zimroth:

They could do that, but on the other hand it seems to me that it would be very wrong for this Court to require that sort of conduct.

It’s very dangerous —

Warren E. Burger:

Well, it was — I’m just asking you what they would do if —

Peter L. Zimroth:

What they would do?

Warren E. Burger:

— to prevent the man from getting out.

Peter L. Zimroth:

Realistically I think (Voice Overlap) —

Warren E. Burger:

If he then tries to walk out of the house, they can — they can of course arrest him, I take it.

Peter L. Zimroth:

Yes.

Well, what — that would require is a stakeout, and I think that’s a very dangerous sort of thing whether they would do it, I don’t know.

I mean, I suppose in some cases they would and in other cases — in other cases they would’ve —

Warren E. Burger:

It depend — it would depend upon the severity of the crime, I suppose?

Peter L. Zimroth:

And the manpower of the — of that particular squad.

That’s another problem with this arrest warrant requirement is that it’s a — it’s a going to be applied to — in a neighborhood of 22,000 police departments throughout the United States and also in an infinite variety of investigations, so that really will be unpredictable in a particular — any particular case would be unpredictable.

Thurgood Marshall:

In this case, could he have gotten it in 18 hours?

Peter L. Zimroth:

Could he have gotten the warrant in 18 hours?

I assume so.

Thurgood Marshall:

Well, why didn’t he?

Peter L. Zimroth:

The facts — the way they’re reasoning —

Thurgood Marshall:

The facts were given to him at noon on one day and they broke into his place at 7:30 the next —

Peter L. Zimroth:

The facts were not given to him at noon on one day.

They —

Thurgood Marshall:

(Voice Overlap) —

Peter L. Zimroth:

All they knew at noon on the day before was they had a — one person saying that he recognized the man who did the job —

Thurgood Marshall:

Didn’t he take a good place and show them the building?

Peter L. Zimroth:

That was much later.

Thurgood Marshall:

It was?

Peter L. Zimroth:

Yes, sir.

Thurgood Marshall:

How much later?

Peter L. Zimroth:

That was well into the afternoon and into the evening.

Thurgood Marshall:

Yes, I know.

In a minute, he could go and be waiting to get it from a magistrate.

Peter L. Zimroth:

Excuse me?

Thurgood Marshall:

In a minute, you go — if a guy is as expeditious as he was, he could have gotten a warrant.

Peter L. Zimroth:

The issue isn’t really —

Thurgood Marshall:

The difference is very simple, with the warrant the man keeps his door and his privacy.

Peter L. Zimroth:

Not necessarily —

Thurgood Marshall:

And without a warrant, he loses his door.

Peter L. Zimroth:

Not necessarily.

I mean, the warrant does not protect the privacy in that — in that manner because you can bust down the door with a warrant, too.

What happen if — if the police had a warrant in this case, they would have busted down the door exactly the same way because they had — they heard — they saw a light underneath the —

Thurgood Marshall:

But they might not have gotten the warrant.

They might not have been able to convince the magistrate that they were entitled to it.

Wouldn’t he have kept his door then?

Peter L. Zimroth:

Well, if the — if you’re saying that they wouldn’t have gone to arrest this man, obviously then they wouldn’t have broken down his door, that’s true.

I don’t think that it’s a — it’s fair to suggest, however, that the warrant requirement will somehow be a quantum leap, an additional protection than what the residents already have.

I mean you have to — it seems to me, be concerned with the fact that you’re talking about thousands and thousands of cases and the possibility of trivializing the warrant process.

William H. Rehnquist:

Mr. Zimroth, do either of the respondents challenge the probable cause for arrest in this case?

Peter L. Zimroth:

No, sir.

Nor — I heard Mr. Hellerstein say, was there probable cause to believe that the defendant was in the particular location which is, by the way, a requirement under state law, by statute.

Potter Stewart:

Even — even though it is his own residence?

Peter L. Zimroth:

You need —

Potter Stewart:

I can understand that the requirement of probable cause to believe that he’s somewhere else —

Peter L. Zimroth:

No, sir.

Potter Stewart:

— but does state law require probable cause to believe that he’s in his own home?

Peter L. Zimroth:

Absolutely.

It’s — it’s — in some ways I think as those — one of my points, it’s more protection than a warrant requirement would be.

Potter Stewart:

Well, except that a warrant requirement requires the disinterested third person to evaluate probable cause, that’s the —

Peter L. Zimroth:

Probable cause —

Potter Stewart:

— that’s the protection —

Peter L. Zimroth:

— to believe that the defendant committed the crime but not probable cause to believe that the defendant is in a particular location which is required under state law which is, as I say, more protective than the warrant requirement would be, assuming it’s an arrest warrant requirement which by the way, Mr. Justice Rehnquist or I think — Mr. Justice Rehnquist or Mr. Justice White, I forgot who asked this question, every court that I’m aware of has held that there needs to be a warrant requirement has said there has to be only an arrest warrant requirement.

The Prescott case, which is a Ninth Circuit case that Mr. Hellerstein refers to was a case of an entering to a third party’s residence.

Although I do concede that there is dictum in that case which suggests that the third — that the Ninth Circuit would require a full blown search warrant.

Byron R. White:

It’s not about dictum, it says that a warrant, whatever it is, the warrant must describe the place to be searched —

Peter L. Zimroth:

It — it is strong —

Byron R. White:

— and the thing to be seized which in this case is a person.

Peter L. Zimroth:

I agree.

It’s strong dictum but it is dictum.

I mean that particular entry I think was into the girlfriend’s house of the defendant, it was — anyway, it wasn’t the defendant’s apartment or house in that case.

Byron R. White:

Well, what do you conceive to be the real practical difference, since you want to talk practicalities between the jurisprudence that your prudential approach on persons and things?

You say historically you don’t — you don’t need a warrant to enter a house to make an arrest, but I take it — I guess you were going to say because people are so mobile and can escape.

Peter L. Zimroth:

Well, it’s not only that —

Byron R. White:

But how about things?

Peter L. Zimroth:

It’s not only (Voice Overlap) —

Byron R. White:

They’re just — they can leave the house with the person.

Peter L. Zimroth:

It’s not only that the people are mobile and can escape, but in most — or in many situations where you’re talking about arrest, it’s fair to suppose that the defendant or the suspect knows of the police interest before the police — at the very same time that the police are gathering their evidence, it’s fair to suppose that the defendant knows of the police interest.

It makes it a very volatile situation which is very different from the search warrant situation.

If you take eavesdropping, for example, as the archetypical search warrant situation, the subject —

Byron R. White:

Yes, but that would lead, let’s say, that you wouldn’t need a — you wouldn’t need a warrant to go in a house to get a gun.

That that was — you — the — you think the gun is in the house, you could get a search warrant, you have probable cause but you need the warrant, although the man that you suspect could easily leave the house with the gun.

Peter L. Zimroth:

I’m not suggesting —

Byron R. White:

You just don’t have probable cause to arrest him yet, you have probable cause to believe the gun is in the house though.

Peter L. Zimroth:

I’m not suggesting that there won’t be any situations in which you search that would be volatile.

Obviously, there will be some situations but I’m talking about as a gross matter, and that’s why the judgment was made.

There’s a second very important point and that was the point of numbers.

Take New York City, for example.

In New York City last year, there were 107,000 felony arrests.

In New York County, which is Manhattan, one of the five counties of New York City, there were 36,000 felony arrests.

There were in the order of 600 search warrants issued in New York County last year.

Byron R. White:

So you suggest that even if there are a lot of cases, when you think you might — that there might — a warrant might reasonably be required, you just say that as a — you need a crude, broad rule that people can — a bright line of some kind.

Peter L. Zimroth:

Absolutely, I think this is a perfectly —

Potter Stewart:

Do you know how many of those arrests were in public places, or do you know how many of them were under exigent circumstances?

Peter L. Zimroth:

No, you don’t but —

Potter Stewart:

Well, wouldn’t you — didn’t you guess that a good — a large proportion were — one or the other or both?

Peter L. Zimroth:

Well, I do know that Mr. Hellerstein cited a study, we’ve cited the same study in our brief that finds that fully half the felony arrests in urban centers in this country take place two hours or more after the commission of the crime.

So that I think it is fair to say that the police officers do not necessarily know in advance where to find the defendant.

So those are the situations, at least that’s the universe from which the police officers are going to have to go get a warrant since they’re not going to know in advance where they’re going to find him.

There’s another —

William H. Rehnquist:

Isn’t part — isn’t part of the montage or whatever you’re going to call it, of argument analogous to Mr. Justice Stewart’s comment in the earlier case that perhaps the most logical thing to do in connection with the Fifth Amendment is to ask the suspect, did you do it or not, and if not tell us where you were and so forth?

It’s logical but the Fifth Amendment prohibits it, and there are lot of things in the Constitution that are prohibited by the — that are prohibited that perhaps if we were to reexamine them today we wouldn’t necessarily incorporate by the same token (Voice Overlap) —

Peter L. Zimroth:

Fourth Amendment by its terms talks about reasonableness.

William H. Rehnquist:

Yes, but by the same token it derives historical antecedents and if there are a long chain of historical antecedents perhaps you would say that logically one situation may not be too different from another, but it’s been long established that you need probable cause to get a search warrant for a gun in a house and the contrary may be true of the (Inaudible)

Peter L. Zimroth:

Oh, absolutely, I think that’s both true, but I also — it’s not only historical antecedents, I think there’s a great logic to it, and the logic of the difference between the way that the two situations are treated is as I have suggested of the arrest situation is much more volatile, also the community’s interest in the two situations is very different.

I — obviously, it’s very important for police officers to gather evidence to convict someone of a crime, but that interest it seems to me palls next to the interest of the community in getting the defendant into custody so that the civilizing processes of law can be brought to bear on his particular case, so guilt or innocence can be decided by a court.

There is no — in my judgment, there is no law enforcement or community interest that is greater than that, and that’s another reason why and there’s a third reason why there’s a — maybe I’m up to the fourth or fifth reason why there’s a big difference, and that is that the power to search is a much broader power.

Evidence of a crime can be anything, it can be anywhere, and it can be in anybody’s custody, especially now after Warden v. Hayden and (Inaudible)

The need for a requirement, even independent of the finding of probable cause, to limit the scope of the search, to tell the police officer what he can look for and where, and also to tell the subjects of the search what can be looked for and where is crucially important, and that’s very different from the arrest power which is by its nature very, very limited.

It’s obvious to everybody concerned, you don’t need a warrant to tell police officers what the object is.

It’s one particular person, and what to do with that person is to bring him before a court, and those are some of the reasons for the historical difference, Mr. Justice Rehnquist.

And unless there are any further questions I am —

Potter Stewart:

Well, you make a point in your supplementary brief that I suppose would lead to the consequence that even if we decide against you, our decision should be prospective only?

Peter L. Zimroth:

It should not apply to this particular case, yes.

Potter Stewart:

Should not apply to these cases.

Peter L. Zimroth:

Yes.

Potter Stewart:

Relying as you do upon a decision of the Court late last term.

Peter L. Zimroth:

Among others.

Potter Stewart:

Well —

Peter L. Zimroth:

And the reason we put — we made —

Potter Stewart:

In Michigan against —

Peter L. Zimroth:

that point in our —

Potter Stewart:

— DeFillippo.

Peter L. Zimroth:

Yes.

We made that some argument in the —

Potter Stewart:

In the original —

Peter L. Zimroth:

In the original brief, but we just updated it with DeFillippo and —

Potter Stewart:

You haven’t addressed yourself orally to that point at all (Voice Overlap) —

Peter L. Zimroth:

No, sir.

But I have — what I can say about that is Your Honor that in 1970, when these officers made entry into this apartment, there was almost nothing that they could have seen around them that would have led them to believe that they should not follow the statute that they were following.

Now, that statute had been on the books for a hundred years, it was not a dead letter, it was part of the living law of the state of New York.

It was not a jarring exception.

Thirty out of 36 states that had legislated on this subject had precisely the same authorization.

Peter L. Zimroth:

There wasn’t a hint of — in anything in this Court that that sort of that conduct was illegal in any way.

Potter Stewart:

Well, there were hints from this Court, weren’t there, in 1970?

Peter L. Zimroth:

In 1971, excuse me, that’s Coolidge.

Potter Stewart:

Well, how about Jones.

Peter L. Zimroth:

Jones was a nighttime entry, and the Court was very specific —

Potter Stewart:

When was Warden against Hayden decided?

Peter L. Zimroth:

Warden against Hayden was previous, but I think it’s fair to say that it wasn’t until — wasn’t it previous —

Harry A. Blackmun:

Yes, I think it was previous —

Peter L. Zimroth:

Yes.

But I think it’s fair —

Harry A. Blackmun:

(Voice Overlap) to this case.

Peter L. Zimroth:

Well, I think it’s fair to say —

Potter Stewart:

No, I had only asked you —

Peter L. Zimroth:

— that it wasn’t until your decision — your decision in Coolidge —

Potter Stewart:

You submit that there were no hints in the —

Peter L. Zimroth:

That — that was a hint.

Potter Stewart:

Yes.

Peter L. Zimroth:

So — well, anyway this is —

Potter Stewart:

What if New York law have said — what if the statute of New York had said in this state no warrants of any kind shall be required for any searches and seizures of any kind, and that the law —

Peter L. Zimroth:

There is no law enforcement official —

Potter Stewart:

— had been clear for a hundred years?

Peter L. Zimroth:

There’s no law enforcement official in this country who would not tell a police officer, I don’t care what that statute says, you better watch out, this — there’s trouble ahead if you obey that statute.

If — if these police officers had come to a group of law enforcement officials and professors of law and judges at that time and said, now, what should we do, shall we follow the statute, I think what those people would have said is absolutely, they — I mean, it’s the law, there’s no —

Potter Stewart:

Well, you’re — you’re employees, you’re officers of the State of New York and that is the legislature of the State of New York.

That’s very natural advice to give.

And — so would it have also I guess with my hypothetical statute.

Peter L. Zimroth:

No, sir, not true.

If — if for example, myself as a prosecutor, if a police officer came to me in that situation that you posited, I would say — probably I would say don’t follow the statute, but if I didn’t say that, I would at least say you follow it at your risk, and that’s — I wouldn’t have said that in 1970 in this situation, and I don’t think anybody else would have said it either.

Thurgood Marshall:

Well, I didn’t — it doesn’t apply to this case because they didn’t go to any official.

Peter L. Zimroth:

That’s true.

Thurgood Marshall:

Right?

Warren E. Burger:

Mr. Hellerstein, do you have —

William E. Hellerstein:

I have nothing further, sir.

Warren E. Burger:

Well, very well.

Thank you gentlemen —

Thurgood Marshall:

Mr. Hellerstein, I have a question, Mr. Chief Justice, if I may.

Warren E. Burger:

By all means.

Thurgood Marshall:

Do you agree with him about how long it takes to get a warrant?

William E. Hellerstein:

Oh, not at all.

Thurgood Marshall:

I didn’t think you did.

William E. Hellerstein:

First of all, just to answer that, Mr. Zimroth is talking within the context of our existing statutory framework that says because we only give you warrants when you commence a prosecution, you have to see the prosecutor.

But that’s what this case — this case is about, we are police officers, can get warrants without having to see the prosecutor as they do in those jurisdictions so we can.

That’s a critical difference.

Warren E. Burger:

Very well.

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in Board of Education of New York —