Preston v. United States

PETITIONER:Preston
RESPONDENT:United States
LOCATION:S.S. Hornfels

DOCKET NO.: 163
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 376 US 364 (1964)
ARGUED: Feb 25, 1964
DECIDED: Mar 23, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – February 25, 1964 in Preston v. United States

Earl Warren:

— 163, John Brenton Preston, Petitioner, versus United States.

Mr. Shea.

Francis M. Shea:

May it please the Court.

This case is here on certiorari to the Court of Appeals of the Sixth Circuit.

The basic questions presented are whether it was error in the District Court to admit evidence which we assert was the fruit of an unlawful search and seizure in violation of the Fourth Amendment and secondly, although the defendant, petitioner here, enjoyed the assistance of counsel required by the Sixth Amendment.

The facts are briefly these.

Police, two police cruisers received a message from headquarters that three men in a Buick car were sitting on a street at New Port Kentucky and had been sitting there for some five hours.

One of the men had left the car and then came back to it and they were instructed to go and investigate.

They went to the scene and found there three men, I think one was standing beside the car and the other two in it, this was at 3 o’clock in the morning, in the business district, they were parked right in the neighborhood of a night club, the marquee of which was still lighted.

They ordered the men out of the car and frisked them for weapons.

They then interrogated them and discovered that none of them were employed.

One had been without employment for some six months.

One of the persons, Sykes said that he had bought the Buick car the day before, but he didn’t have title papers with him.

They had $0.25 cents between them.

Their responses to questions the police said were evasive, but this is not particularized in the record.

They said they were there waiting for a person named Saxton, who is coming in on a trailer truck from a town some hundred miles away and who it was believed could help Strunk and petitioner to find employment.

They couldn’t inform the officers as to the company that Saxton worked for and of the kind of truck he was driving.

In response to the question of how they would recognize him, Sykes said that he normally stopped for a cup of coffee about a block down from where they were parked and in response to the question of why they weren’t parked down there; the police thought that they gave evasive answers.

On this basis they were arrested, they were taken to the police station in one of the cruisers.

The Buick car was driven to the police station and then towed to a nearby parking lot.

At the police station the police commenced their interrogation. Sykes asked permission to go to the car to get some cigarettes, he was denied permission, but the officers then went down to search the car.

There is no suggestion that this was at the request of Sykes or with his permission.

In searching the car they found in the glove compartment two loaded revolvers.

They attempted to open the trunk of the car but were unable to with the keys they had taken from Sykes.

They returned then to the station and one of the detectives, Chapiarni sent Doxson, one of the uniformed officers down to see if he could get into the car.

Doxson with the aid of the persons at the parking lot, pulled out the back seat, removed the partition between the back seat and the trunk and found there, two women’s stockings, knotted at the top and one of them with eye holes in it.

Four caps, two of them split in the back, two lengths of rope, a piece of fishing line, a false Kentucky license with hooks that catch, that could be slipped over and hung on to another plate and two pair of gloves.

They then proceed with their interrogation and Sykes confessed that he and two others, but not Strunk or petitioner, had planned to rob the bank at Berry, Kentucky.

At this point they called in the FBI, because it was a federally insured bank.

They had lodged when they found the revolvers a further charge of carrying concealed and deadly weapons, but neither — and when they came to the station initially they booked the three for vagrancy.

Francis M. Shea:

The vagrancy charge and the charge of carrying concealed weapons so far as the record discloses where never tried.

Some functionary of the local court said they were adopted by the federal prosecutor.

So they were brought to trial on a charge of conspiring to rob a federally insured bank and convicted.

These I think are the facts pertinent to the issues which are before you, but I might note that at the trial the only evidence against petitioner was the testimony of a bartender that he had heard a conversation between petitioner and Strunk and Sykes that they had a big job on.

On cross examination, he said that he didn’t whether that was installing a large furnace or what it might have been and the shopkeeper in Berry said that he had seen Sykes and he could pretty well identify petitioner driving slowly through the town and carefully looking about.

And there was the testimony of an FBI agent that petitioner had admitted to him that he had talked about robbing the bank at Berry, it was in a preliminary stage.

Petitioner testified he never talked about any bani in Berry.

What he had said was — what he had meant by preliminary talk was that Sykes had come in to him and Strunk had said that he had a chance of making $5,000 and Strunk had said well that must be robbing a bank and he said, how did you know, and at that point Strunk said, well I just don’t want to hear anymore about it (Inaudible).

On this evidence and the evidence in question here, petitioner was convicted.

The Solicitor General has expressed concern that as to whether or not this evidence was sufficient to go to a jury.

I share his concern.

That question is open to this Court if it chooses to deal with it, but I assume certiorari was granted to deal without the question and I turned to this question.

In our original brief, we addressed ourselves to what we had supposed and still believe was the statute on the basis of which these men were arrested for vagrancy and the Court will find that setout on page three of our initial brief and with your indulgence I should like to read it with you.

Any person guilty of being a vagrant shall to the first offense be fined $10 or imprisoned for 30 days or both, for the second and each subsequent offence he shall be imprisoned for 60 days.

Vagrant is used in subsection 1 of this section and KRS 436530 means, any able bodied male person who habitually, habitually loiters or rambles about without means to support himself and who has no occupation at which to earn an honest livelihood or any able bodied male person without visible means of support who habitually fails to engage in honest labor for his own support, support of his family if he has one or any idle and dissolute able bodied male person who purposely desserts his wife or children be any of them without suitable subsistence, suitable means of subsistence, or any able bodied person without visible means of support who habitually refuses to work and who habitually loiters on the streets or public places of any city.

Arthur J. Goldberg:

(Inaudible)

Francis M. Shea:

I should think that was public.

In our initial brief, we argued that under this statute certainly there was no probable cause for arrest because these officers knew nothing of these men prior to the time they encountered them on this occasion on the streets of New Port and therefore there could be no possible basis for them to conclude that there was probable cause of the violation of this ordinance.

The Solicitor General now concedes that that is the case and so this ordinance is out of the case, but he retreats to other ground.

He says that, this statute, he says there is an ordinance of the City of New Port and if that ordinance is also a vagrancy law and that the police might just as well have had in mind the New Port ordinance as the state statute and if there is any doubt about that the burden was on the petitioner to clarify that doubt in the court below and therefore he, the Solicitor General, may defend on the ground that the arrest was under the ordinance, and there was probable cause to conclude that there was a violation of the ordinance.

And then he says further that even if this isn’t so, even if the arrest was not under the ordinance, nevertheless if there was some statute which if the police had any in mind at the time of arrest, would have furnished probable cause for the arrest even if they didn’t have that in mind.

The Solicitor General may now rely on those laws to justify the arrest and he says that there are two sets of laws, that there was reasonable cause to believe, that the automobile was stolen and there was the reasonable cause to believe that the New Port Ordinance had been violated and lastly he says that even if he can’t justify this search and seizure as incident to a valid arrest, nevertheless there was probable cause to believe that the automobile was stolen that in itself would justify a search without a warrant.

Let me address myself to each of these contentions.

First he contends, as I suggested, that he can rely on that New Port Ordinance, but that may have been what the officer had in my mind.

Let me ask the Court again to indulge me in reading with you the terms of that ordinance.

It is setout on page two of the Solicitor General’s brief.

It reads “loitering, loitering penalty,” “that it shall be unlawful for any person not having a illegitimate business or visible means of support to in an idle, dissolute, disreputable, or eloping way to loiter around the streets within the limits of the City of New Port and any person so offending shall be on conviction thereof fined any sum not exceeding $15.”

I should like ask Your Honors to know that the vagrancy statute of the State of Kentucky and this ordinance are fundamentally different pieces of legislation.

The state statute punishes for a status crime, not for an act or omission.

It’s for the habitual doing of things, the character that the man has assumed.

Francis M. Shea:

The ordinance punishes for an act so that we are not dealing with fungible goods, we are dealing with fundamentally different legal provision. Now, if the Court please, these men, according to the testimony of each of the officers who testified, were arrested for vagrancy.

They were booked for vagrancy.

The prosecutor tried the case in terms of vagrancy. Petitioners counsel sought to establish that they weren’t vagrants within the meaning of the Kentucky Statute and when the Solicitor General filed his brief in opposition to the petition for certiorari, he argued on the basis of the Kentucky statute.

I suggest to the Court that the statute of Kentucky says on its face vagrancy, the ordinance says on its face loitering.

Now there are interchangeable words in it too, but it seems to me that so far as anything in this record would permit us to determine which law the police were relying on, it is the vagrancy statute.

Let me address myself to the point that it was petitioner’s burden to get this clarified below.

Arthur J. Goldberg:

(Inaudible)

Francis M. Shea:

Yes.

If I understand correctly the disposition of this Court on the matter, the statement of this Court in Jeffers, the statement of this Court in Jones, the rule is that you must have a warrant to arrest or search and seize.

There are exceptions, but the general rule is zealously guarded and whoever relies on an exception has the burden of establishing the applicability of the exception.

It seems to me this suggests if there was any ambiguity, it was the government’s burden and not ours.

Moreover counsel for the petitioner did it seems to me all he could do.

He asked these officers on the stand what they charged these men with and they said vagrancy.

It was the prosecutor who knew what it was they had in mind and he thought that there was ambiguity or that defense counsel were be mislead, it seemed to me he had a clear obligation to clarify.

(Inaudible)

Francis M. Shea:

That’s right.

(Inaudible)

Francis M. Shea:

No it never came —

(Inaudible)

Francis M. Shea:

Yes he is — counsel for petitioner at the opening sought to suppress some of the close — of the government’s case, made his motion, addressed to that and also closed the whole case, I may have misspoken.

So that it seems to me that this is a not a ground on which the government can properly rely.

Now, let me turn to the second point.

The second point —

Arthur J. Goldberg:

(Inaudible)

Francis M. Shea:

Yes.

Well the record is replete, replete with the fact that vagrancy was what was being discussed.

Now, what the government tries to say is well the ordinance of vagrancy too.

Let me turn to this second point which the government makes and that is that even though the officers arrested under the vagrancy statute of the state, nevertheless if there is some law under which they might have arrested, which would have given them probable cause to believe that, that law had been violated, they may now rely on that to sustain the validity of the arrest, and first they say that there was probable cause to believe that the car was stolen and secondly probable cause to believe that the new Court ordinance was violated.

Well of course this was the question left open in the Reed, but if I read accurately the decisions of this Court it seems to me a point which was foreclosed in Jones and in Chapman.

Moreover, the government asserts and I suppose rightly with an exception that I think is not pertinent here, that the validity of the arrest by a state officer under a state statute is to be tested by state law and in four cases which we have cited to you, the highest court of the State of Kentucky has held in false arrest cases, that where the police arrest on one ground and Kentucky has a notice provision requiring them to inform the defendant of the ground of the arrest, where the police arrests on one ground they may not subsequently justify on the basis of a different ground or a different law.

Francis M. Shea:

So it seems to me that counsel in this regard is leaning on rather a weak ground.

Now let me assume that he can rely on these two other laws.

He asserts that though the statute of Kentucky provides that an arrest maybe made for a public offence if committed in the presence of the officer or for a felony if there was reasonable cause to believe, which sounds certainly very much like the common law provision, he asserts that this has been construed by the courts of Kentucky to mean that in the case of a misdemeanor such is a violation of a vagrancy or a loitering statute, that the arrest maybe validly made if done in good faith, with probable cause to believe and where the probable cause derived from his senses or admissions of the defendants but not third parties and I think he has some authority to this, I think it’s a doubtful area.

I’m not going to address myself to it, the reasons for the doubts are set out in the brief.

I’m going to assume for these purposes that if there was probable cause to believe the arrest could be justified.

Let me address myself first to probably cause to believe the car was stolen, the evidence was that Sykes was at the wheel of the car.

He said he had bought it the day before.

He didn’t have title papers.

It was sitting in the middle of Newport, where one would hardly expect a person who had stolen a car to leave it or to sit in it, the most obvious place for apprehension.

The things that are not said in the record are even more critical.

No suggestion that there had been any report from headquarters of the stolen car.

No suggestion, even though the officers had been informed from the who the car had been bought, that they made any effort to check whether it had or not.

It seems to me on this record the Solicitor General has a very considerable burden to bear, to persuade this Court that there was probable cause to arrest on the grounds that the car had been stolen.

Secondly, let me turn to question of whether there was probable cause to believe that this ordinance of Kentucky had been violated.

There is nothing in the record to suggest that the officers had reasonable grounds to believe that these persons had no legitimate business unless that means that they were unemployed or if they had any visible means of support whatever that maybe, some of the courts accept it’s not enough to establish that you have money in your pocket or money you derived from begging, but it is enough if it’s derived from gambling, what that means I don’t know, but in any event no effort to establish it, nothing to show that they were idle, dissolute, disreputable, loafing.

I suppose what I’m basically saying is that under an ordinance as vague as this, even if the effort had been made and the effort was not made, it would be impossible to show probable cause for the arrest and this carries this into the constitutional question.

I defy any intelligent man that if that be the test to know whether he was or wasn’t committing a crime under these vague words.

The Solicitor General concedes that there is a good deal of vagueness at the periphery, but they suggest that at the core of this ordinance, there is a hardcore with adequate definition to support it against a charge of unconstitutional vagueness and this hardcore, to use their words, is this.

“Just ordinary standing or sitting,” this is on page 19 in this brief on the footnote, “just ordinary standing or sitting is not prohibited.

Loitering in a suspicious manner on the other hand satisfied this element of the crime.”

As I read this, it makes the officer’s state of mind, the petitioner’s crime.

I don’t know what else, where else you get suspicion expect in the officer’s mind.

You would up to date is accepted, we don’t reach any constitutional question.

Francis M. Shea:

Quiet sir.

I beg your pardon?

Francis M. Shea:

That’s quite sir.

The government further says on page 20, the ordinance involved here, here is another summary of a hardcore, the ordinance involved here is plainly aimed at persons who, this is the government’s statement of the hardcore, I mean they say their vagueness is periphery, the ordinance involved here is plainly aimed at persons who having no employment or a legal source of income remain on the streets without any valid reason for their presence.

Now if I read this accurately, I would suppose that a man who had been unemployed and whose unemployment insurance had just expired, who for no reason except he was sick of being cooped up, wandered around the streets of Newport looking into the store windows, would be guilty of a crime under this ordinance.

And I suggest Your Honors if this is the best the Solicitor General can do with this ordinance, the decision of this Court in Lanzetta, it seems to me is clearly applicable and that this ordinance cannot withstand constitutional attack.

Tom C. Clark:

(Inaudible)

Francis M. Shea:

According to the information relayed to the car from headquarters, received from an unidentified person, five hours.

Tom C. Clark:

(Inaudible)

Francis M. Shea:

3 o’clock in the morning was when he was picked.

This is according to what — on double hearsay was what an unidentified person said.

So far as what the officers have otherwise, at the time, one of the officers testified that one of the men said they had been in the vicinity for some time.

It is not clear to me whether that meant.

They had been living around that area for some time or whether it was directed to how long they had been there, but that’s what they had.

That is what they stated to the officer.

Now, if the Court please, even if the Solicitor General were able to establish the validity of the arrest, I do not think it would give him lasting comfort.

Let me turn first to the question of whether the arrest could have been justified on the basis of a — I mean search and seizure could have been justified on the basis of a valid arrest under the ordinance.

Arthur J. Goldberg:

(Inaudible)Mr.

Francis M. Shea:

I should suppose that might be a reasonable defense to an action for false arrest, but when we are dealing with an issue of a lawful search and seizure, while they may have had reasonable grounds to believe let us say that the men were loitering in a dissolute manner however, according to what they understood this to be.

They didn’t have reasonable grounds to believe a crime was committed if this ordinance is unconstitutional, it seems to me.

Furthermore, the risk has to be thrust somewhere, either the risk is on the police or the risk is on a man who if it is unconstitutional is doing a legally protected thing, in those circumstances it seems to me the risk should fall on the police.

(Inaudible)

Francis M. Shea:

I am not sure that I follow that if the Court please?

I mean there are circumstances in which it may be contested, maybe stricter in the false arrest area, but for instance the Kentucky Court states that they are much stricter, where the issue is one of search and seizure and they are words, a question of justifying the arrest.

Perhaps I don’t address myself to your precise point, but they are different is all I suggest, you may excuse the officer, you may excuse the officer if he with his limited scope and his inadequate indoctrination, thought that this statute may have put the police at — and uneducated believed it to be for sometime, perhaps you can excuse him on that ground, I don’t think you can excuse on that ground the use of testimony, evidence collected on the basis of the unconstitutional arrest.

Let me turn to, I have done my best Mr. Justice.

I have done my best.

I don’t know whether I have satisfied you.

Let me now turn my attention to the question of even assuming a valid arrest as I suggested, under the ordinance whether the search and seizure were justified.

I take it that Harris and Rabinowitz mark the outer limits of the premise and I have no need to attack those cases here.

I take it that they say at most you must confine yourself to a search for the fruits of crimes or the instruments for its commission or means of escape or harm to the officer.

Now what are the fruits of the crime of vagrancy for which they were searching, what are the instruments for its commission for which they are searching.

I suggest that there can’t be any justification on those grounds and the government, seeing the difficulty of that position, suggests that not only have they justified searching for the fruits of the crime for which they have arrested, the instruments for its commission, but the fruits or instruments for commission of related crime.

They have not cited authority to the proposition and it seems to me what this means is the thing which was most directly condemned by the Fourth Amendment in the case of an arrest on suspicion or for vagrancy a general search without a warrant.

Now, let me turn to the question of reasonableness of the search assuming that there was probable cause to believe the car was stolen.

I take it that would have justified seizure of the car, but here was the car in parking lot, no chance of it ever being moved, we don’t have any Carroll situation, under the complete dominion of the police and the question is could they in most circumstances ransack that car without a warrant.

Now, I take it that Rabinowitz in overruling earlier cases said that the practicability of getting a warrant was not controlling, but I don’t understand to say that it isn’t relevant and indeed the strong statements of this Court, especially of the statement in Jones, the strong statements of this Court that the rule is a warrant, a rule zealously guarded and that you are going to part from the law you must justify yourself on the basis of bringing yourself carefully with an exception.

Francis M. Shea:

I would suppose this suggests that where it’s practicable, there is not difficulty about seeking a warrant and there are no considerations as there are none in this case to suggest the necessity of proceeding without a warrant, that a warrant is required and so I suggest to the Court that even if the arrest on the grounds of probable cause to believe that the car was stolen wouldn’t have justified ransacking it.

Certainly you weren’t likely in the trunk the means of stealing the car or the fruits, the fruits of the car itself what you could find with evidence.

(Inaudible)

Francis M. Shea:

Well, to make the argument — it depends now on, I mean we are assuming I take it a valid arrest –

(Inaudible)

Francis M. Shea:

Yes I’m assuming a valid arrest on the ground that the car was stolen.

I would suppose at the scene, they might well have justified the search for weapons or means of escape, I should think.

(Inaudible)

Francis M. Shea:

I should think that might well be critical in the question of the application of Rule 1.

I mean if one is to judge the reasonableness of it in terms of a variety of considerations of which one certainly is how jealously guarded should be the searches without warrant and there are no, there is no reason to suspect they could escape or attack the officer or dispose of anything once it’s within the custody of police, it seems to me that the force of the rule heightens and the exception lessens in those circumstances.

Now, let me finally address myself — let me finally address myself to the point of the assistance of counsel in this case.

Two attorneys were appointed jointly to represent three men in a conspiracy case.

The government suggests that this is a matter of trail tactics as to whether two lawyers could adequately represent three jointly.

I think anyone who has had experiences representing two clients and then pursue it identically in a civil case would testify that you never know when you want to disassociate the one from the other and I need mention only one point in this connection in this case.

It seems to me clearly any lawyer defending petitioner whose sole loyalty to, was two petitioner would have attempted to show well psyches perhaps know about all those guns and the other paraphernalia in the trunk, that there is nothing to indicate that petitioner knew anything about it, but he could only make that point sharply if he had no loyalty to cite.

Did the, neither of the two assigned counsels suggest that they were not able to represent the three defendants?

Francis M. Shea:

They did not.

I suggest to Your Honor that this is the situation falling as far I see squarely within (Inaudible).

Your Honor this is our case.

Earl Warren:

Mr. Glazer.

Sidney M. Glazer:

Mr. Chief Justice may it please the Court.

As we view the case, the principal issue involved is the reasonableness of the search and not whether particular the Kentucky legislation would sustain a conviction either under a loitering statute or a vagrancy statute.

The issue is whether the Fourth Amendment forbids the use in evidence in a Federal case of evidence obtained by state officers as a consequence of the 3 a.m. search primarily of the glove compartment of an automobile which had been parked on a city street for five hours after the officers went out and interrogated the men in response to a complaint of citizens.

Now we believe that this search which was conducted was reasonable and we make three – there are three reasons why we make that contention.

We think the search was incident to an arrest under the Newport loitering ordinance.

(Inaudible)

Sidney M. Glazer:

All right, Your Honor, I think you have to first examine how this issue arose under the facts of the case.

(Inaudible)

Sidney M. Glazer:

No, the word, the —

(Inaudible)

Sidney M. Glazer:

The only word mentioned is ‘vagrancy’ and we say that word is broad enough to embrace loitering.

The vagrancy statute here involved has in three of its subsections forbids loitering.

Now what we say in this situation, whether or not, if I give an illustration, if an officer arrests the man for a murder and he only has probable — he doesn’t have probable cause for murder and he only has probable cause for manslaughter, we say the arrest of him become invalid under such circumstances and —

(Inaudible)

Sidney M. Glazer:

We make two contentions.

One we make the contention, he was arrested for vagrancy and we do not know under this record whether in — at the time he is arrested for vagrancy whether or not that vagrancy included loitering or not.

Certainly, the police when they went to scene didn’t arrest just these men because they were unemployed.

They arrested them because they were there.

They didn’t have title papers to the car.

They gave an explanation which was completely evasive and improbable as to why they were there.

If it was just a situation of unemployed men standing abut, but I don’t think anybody in examining this record will say the police would have arrested them.

So in a sense when they arrested them for vagrancy, I think the vagrancy and given the fact that vagrancy has common elements with law — with loitering, if you want to say that they are different in a sense that they were arrested for both offences.

(Inaudible)

Sidney M. Glazer:

Well —

(Inaudible)

Sidney M. Glazer:

Well —

(Inaudible)

Sidney M. Glazer:

Well – no, well of course vagrancy, vagrancy is one that’s a general term and embraces a whole category of offences and vagrancy is a term which we think is broad enough to embrace loitering.

Now as far as how this record was made, no body in either court below ever focused any attention on any particular legislation, petitioners filed a motion to suppress alleging that there was an unlawful — unlawful search and seizure.

They put on in testimony.

The three of the four arresting officers, the officers testified they have — they arrested the defendants for vagrancy.

They spelled out that the fact that the — the fact that the men were unemployed wasn’t the sole reason for the arrest, but the arrest was made because of the other circumstances surrounding the men.

Now petitioner’s argument in the District Court and the Court of Appeals, its principal contention was you can’t introduce this evidence because there have — because the Kentucky Courts have not made a judicial determination whether the arrest is legal or not.

This is an argument which this court rejected in Elkins and that was the entire contention which was made in the District Court and if there is any vagueness about the contention made in the District Court, it certainly clarified when you look at what the argument petitioner made in the Court of Appeals and his sole argument in the Court of Appeals was, you can’t introduce this evidence because there hasn’t been a judicial determination in the Kentucky Court.

(Inaudible)

Sidney M. Glazer:

The only thing as the record indicates that they were charged with vagrancy.

(Inaudible)

Sidney M. Glazer:

Well as I understand Kentucky law that creates a complication.

In Kentucky — under Kentucky law apparently the same court which has jurisdiction or under the Kentucky vagrancy to hear offences under the Kentucky vagrancy statute, has jurisdiction to hear offences under the Newport ordinance, loitering ordinance and apparently there unlike some police courts where written pleadings are filed, no written pleadings were filed in the court.

And in the absence of somebody making in a — filing a request for a bill of particulars, since this case wasn’t prosecuted you can’t say whether the intent was to proceed under vagrancy, loitering or both, I mean as far as what is in the court records are concerned.

Earl Warren:

(Inaudible) the Federal Courts take judicial notice of city ordinances?

Sidney M. Glazer:

Your Honor, I don’t know what the rule in Kentucky is.

Earl Warren:

What is the rule in these courts, Federal Courts?

Sidney M. Glazer:

I don’t know what the Federal Court has, I know some courts have a rule that — Kentucky rule that judicial notice isn’t taken of ordinances.

Earl Warren:

I beg your pardon.

Sidney M. Glazer:

I say I concede that some courts have a rule that, I’m not familiar with the federal rule, but some courts have a rule that judicial notice is not taken of ordinances.

Earl Warren:

Isn’t that general rule?

Sidney M. Glazer:

I would imagine it is, I —

Earl Warren:

Before it was argued many times in this Court in other context that defendant can’t use it when he comes to this Court because he hadn’t specially pleaded it in the courts below that because courts did not take judicial notice of city ordinances and I wonder how you could go all the way from the District Court up to this Court and not plead the ordinance in any way and then ask a state judicial —

Sidney M. Glazer:

I think the problem in this case Your Honor is the fact that in none of the courts below was there any attack or any — nobody, nobody considered any legislation, nobody focused on any legislation statute or ordinance or otherwise.

It was just assumed that this conduct fell within some legislative provision.

I mean both the District Court –.

Earl Warren:

On vagrancies, on vagrancy provision, wouldn’t that be more correct?

Sidney M. Glazer:

Well then the problem is what you mean by vagrancy.

Some — most the articles that I have read on subject include loitering type offences in with the vagrancies, but it’s still a question whether or not you are going to — if you want to separate the two and make in one category loitering and one category vagrancy, I suppose you can do that, but it’s —

Earl Warren:

You mean it’s immaterial when you charge a man with vagrancy whether it’s under a state statute or whether it’s under city ordinance to charge this entitled loitering?

Sidney M. Glazer:

No I don’t think it’s immaterial.

In this case the problem is that the issue was never focused and brought to anybody’s attention whether they were charged as vagrants, whether they were charged as loiters or whether they were charged as both and —

Earl Warren:

Were they at any place booked for — booked or charged for loitering?

Sidney M. Glazer:

They were booked for vagrancy, they were booked for vagrancy and as I tried to point out before, if there wasn’t probable cause for vagrancy, the state vagrancy statutes since it has common elements with the city ordinance such as visible means of support, loitering and it would be — certainly wouldn’t be an unreasonable construction to say that if you didn’t have probable cause for one offence, but you had probable cause for another offence which contains some of the same elements, I have to say that an arrest under such circumstances is unreasonable.

I don’t — to me that seems to me is going pretty far.

Earl Warren:

When did you first rely on the loitering ordinance?

Sidney M. Glazer:

Well, the first time we relied on the loitering ordinance specifically was in our brief on the merits in the brief in opposition here is all we said —

Earl Warren:

In this Court?

Sidney M. Glazer:

In this Court.

In the District Court, in the Court of Appeals, nobody spelled out or relied on any particular statute.

In our brief in opposition was the first time anybody brought a statute into this case, in our brief and opposition we said three men had been loitering in the public street for five hours.

They were unemployed and without visible means of support.

There were reasonable grounds for the police officers to believe in good faith that the public offence of vagrancy Kentucky revised statute 436520 was being committed in their presence, and that’s what we said and that’s the first time that I recall that anybody brought in any legislation into the picture in any court.

When these men were taken to the police station were they immediately booked on the vagrancy charge or was there question before the —

Sidney M. Glazer:

They were immediately booked on vagrancy Your Honor and 15 minutes later the — after they were brought to the station, 15 minutes after the arrest their car was searched.

Then they were booked on charge of concealed weapon?

Sidney M. Glazer:

Yes then the concealed weapons charge was added to the vagrancy charge.

(Inaudible)

Sidney M. Glazer:

Well, of course suppose you have a situation Your Honor where you have a statute or an ordinance which forbid loitering in a dark alley at night and a woman calls the police and says there is a man lurking in the alley near my house and he has been there for several hours and the police come on the scene and they question the man and the man gives them evasive answers, it doesn’t seem to me unreasonable to arrest the man and if he is there with the car to conduct a search at the place of the car incidental to that arrest and the fact that there is only a $15 fine for loitering in a dark alley to me it seems to be — it doesn’t make the search unreasonable, it just from that point of view I think it’s reasonable police action.

It’s —

(Inaudible)

Sidney M. Glazer:

Well, of course, it depends on what the purpose of the search —

(Inaudible)

Sidney M. Glazer:

Well, it seems to me that if you have — getting back the man from the dark alley, the fact that you can’t pinpoint that he might be considering burglarizing the place in the vicinity or that he is — we might be waiting for somebody to walk down the street to mug him.

It seems to me in all circumstances an arrest, if you show he is lurking in this alley and he has no reasonable explanation for this lurking, I don’t think a search under such circumstances would be an unreasonable search.

Potter Stewart:

Usually that’s what these ordinances and statutes are — matter with the reality of the situation utilized by the police aren’t they to pick up known undesirable people or suspicious people, that is people of pickpockets and prostitutes and homosexuals in crowds and that people acting suspiciously, the kind you just mentioned.

Sidney M. Glazer:

We don’t contend that any time you arrest somebody for loitering that you can conduct an incidental search.

What we’re saying is that if you arrest somebody for loitering under a particular statute, and if the circumstances are such which — circumstance in which he is loitering are such to cause alarm for the safety of persons and property in the vicinity, only under such limited circumstances are you authorized to conduct a search, in other words if the police cannot go out and just make a general round up of people on the theory that they are loitering and then try to solve some crime.

We think the reasonable of such a statute is illustrated by the American Law Institute Model Penal Code.

They have a provision which makes some an offense for a — which they call a minor offence, a violation, it’s only subject to fine, if a person loiters or prowls in a place, at a time or in a manner not usual for law abiding individuals, under circumstances that warrant alarm for the safety of persons or property in the vicinity and then they — unless some of the circumstances which might warrant alarm and they put this proviso and unless liked by the actor or other circumstances is impractical, a police officer shall prior any arrest or an offence under this section for the actor an opportunity to dispel any alarm which would otherwise be warranted by requesting him to identify himself and explain his presence of conduct.

So there is a need for a local community to have such legislation.

Earl Warren:

(Inaudible) the ordinance, do you abandon your reliance on the vagrancy statute?

Sidney M. Glazer:

Your Honor what we say in the brief is that the — there was no evidence in the case, the vagrancy statute provides that you have to habitually either loiter or do the various acts prescribed in this vagrancy statute.

There is no evidence in this case that the defendant — I mean that the petitioner, the other two defendants had loitered on any other occasion.

So in this — we don’t know how Kentucky would construe this legislation and in the absence of that we have said that perhaps it would be reasonable to construe it as to loitering on several occasions and for that reason we rely on the ordinance rather than the vagrancy statute.

Earl Warren:

You don’t ask us to sustain on the federal — on the state statute?

Sidney M. Glazer:

No we don’t.

(Inaudible)

Sidney M. Glazer:

The fact that these men report there from 10 p.m. to 3 a.m. —

(Inaudible)

Sidney M. Glazer:

Well in the first place, I think loitering as such could be reasonably be construed to exclude innocent idling.

So I think that the Kentucky courts could say that loitering itself means loitering for a purpose somewhat like the American Law Institute has.

(Inaudible)

Sidney M. Glazer:

Well of course I think in addition to the fact that they were in an automobile is a fact that they were in automobile in which they did not have the registration papers required by Kentucky law.

(Inaudible)

Sidney M. Glazer:

Well —

(Inaudible)

Sidney M. Glazer:

I don’t know how a Kentucky Court would construe it, but I would think that that when you have — that under the ordinance which provides that it shall be unlawful for any person not having a legitimate business or visible means of support, I think — and to — in this particular manner loiter I think —

(Inaudible)

Sidney M. Glazer:

Well, then the — then the problem really boils down to this, of course I think the Kentucky Court could construe it, I mean it maybe a strained construction, but I think they could construe it in a manner like the ALI’s definition, but the issue really is, is not the validity — whether the ordinance would sustain a conviction or the issue isn’t whether — the issue rather is whether or not the conduct of the police was unreasonable.

(Inaudible)

Sidney M. Glazer:

Well.

(Inaudible)

Sidney M. Glazer:

Well of course in a sense — in a sense of, a police officer — a police officer is authorized to make an arrest when he has probable cause to believe that certain facts constitute an offense.

Whatever the difficulties of construing this ordinance we think that a local police officer had probable cause to act under that.

In other words, it’s a legal, certainly a legal problem.

Lawyers would find it to be a legal problem, but I don’t think it was unreasonable for the police officer, and the facts to act under this act, and arrest these people, and the circumstances in which he acted and I think that’s the issue whether or not his act is — the act of the police officers arresting this men was reasonable, whether or not rather — than whether or not the ordinance was — would constitutionally sustain a conviction and in the sense that while nobody has brought the ordinance in the case until this level, certainly a police officer acting, a police officer not only would — unless he was very educated police officer would not be —

Hugo L. Black:

What’s the population of New Port?

Sidney M. Glazer:

Population of New Port I understand, Your Honor, is somewhere above Cincinnati, a population of 3000 people.

Hugo L. Black:

Where was this car parked?

Sidney M. Glazer:

This car was parked in a business district, near a night club.

There were other close businesses in the vicinity.

There is a restaurant a block and a half away.

Hugo L. Black:

Open?

Sidney M. Glazer:

Apparently the restaurant was open Your Honor –

Hugo L. Black:

And –

Sidney M. Glazer:

— and the night club, the night club was open till 3 O’clock as the record indicates, night club was just closing apparently at the time the police went out to arrest these people.

Hugo L. Black:

What, what excuse did they give for being there?

Sidney M. Glazer:

Well they –

Hugo L. Black:

Did they say anything about the night club or the restaurant?

Sidney M. Glazer:

No, the excuse they gave for being there?

Hugo L. Black:

Yeah what reason did they give?

Sidney M. Glazer:

They said — they were hesitant and the first thing the police said why are you there and they said, we are waiting for a truck driver named Johnny Saxton, who — and so the police queried further and they had said that the truck driver was driving from Lexington to New Port.

Now Lexington, I, we’ve put in the brief is less than a hundred miles away, I think it’s actually maybe about 85 miles away.

Sidney M. Glazer:

They have been waiting there for five hours, so they said, what kind of truck, what kind of truck is Saxton driving?

They couldn’t give any explanation to that.

Hugo L. Black:

You could say whether (Inaudible)

Sidney M. Glazer:

What, what —

Hugo L. Black:

Did they say whether or not they had a job?

Sidney M. Glazer:

Well, the three men said they were unemployed.

Hugo L. Black:

Did they have any money?

Sidney M. Glazer:

They had 25 cents between them.

Hugo L. Black:

Which one had it?

Sidney M. Glazer:

The record I don’t think indicates who had the 25 cents.

Hugo L. Black:

That’s one of the charges in the — in loitering.

What they are doing, whether they have a job–

Sidney M. Glazer:

Well all three of them–

Hugo L. Black:

They don’t have any mean to support, did they claim they had any mean to support?

Sidney M. Glazer:

My recollection Your Honor is they all claimed that they are unemployed and one said he was unemployed for a period of up to six months and they didn’t claim any, in my recollection any means of support.

Hugo L. Black:

I thought the — Mr. Shea said that that they were waiting for Saxton, because he was going to get them a job.

Sidney M. Glazer:

He — that’s what’s they said, they are waiting for Saxton because he was, so he was going to get them a job.

Of course Saxton never has produced, he doesn’t testify at the trial and if they are waiting for Saxton there for five hours–

Were the streets lighted?

Sidney M. Glazer:

There are lights — the description of the lighting I don’t think is — nobody describes how lighted the streets were, I am sure there must have been some city lights, but it doesn’t.

Record doesn’t show.

Sidney M. Glazer:

I don’t, my recollection is that the lighting in the streets are not —

And there were three men, how many officers?

Sidney M. Glazer:

There were three men and four officers, there were two cars, two detectives and two policemen.

Tom C. Clark:

Three men in the other car.

Sidney M. Glazer:

What did you say?

Tom C. Clark:

Three men in the —

Sidney M. Glazer:

Three men in the other car, three men and this town has a police force, according to FBI, a uniform crime reports 60, 60 or 61 police and police employees, total police force.

Tom C. Clark:

What I was — are you through?

Sidney M. Glazer:

Yeah.

Tom C. Clark:

It appeared to me that the Court could get avoid the doubts of Justice Goldberg if they adopted Mr. Shea’s doubts as to the search of the automobile, what is your answer to that?

Sidney M. Glazer:

Specifically whether or not you could just search the automobile, the delayed search your Honor.

Tom C. Clark:

When they found the guns and charged them with the — having the guns.

Sidney M. Glazer:

Yeah, it seems to me, if it was reasonable, if it was reasonable, I think the officers acted reasonably in arresting them.

It seems to me reasonable to search, to go in the car and search the car 15 minutes later and not — rather than searching the car on the street, while — they had the right to search the car on the street, it doesn’t seem to me unreasonable for this, for these officers to search the car at 3 O’clock in the winter night, they have three men, they have just arrested three men, it doesn’t seem to unreasonable for them to search the car at the police station.

Tom C. Clark:

Where were they — where were the men then?

Sidney M. Glazer:

The men were, had been booked, so I assume that they were locked up?

Tom C. Clark:

The car was in the police —

Sidney M. Glazer:

The car was in the police station.

Now —

Tom C. Clark:

(Inaudible) they couldn’t get to the car, but —

Sidney M. Glazer:

The men couldn’t get to the car as long as they were still incarcerated and I don’t know what — if the police depended — the problem — the police have control of the car without somebody else would come and try to drive away I don’t know.

I would think it seemed to me though —

Tom C. Clark:

I said I understood Mr. Shea, I had read the record, he said the police parked the car on a lot, so —

Sidney M. Glazer:

Well, the record is clear — the record indicates that at, they arrested him at this on the street.

They took the car; one police officer drove the car to the police station.

They booked the man, 15 minutes after arrest Sykes, the driver of the car said I would like to go to the car to get some cigarettes.

At this point one of the detectives and two of the men went down to the car by themselves —

Hugo L. Black:

With the Sykes?

Sidney M. Glazer:

No not with, no apparently without Sykes, they went down the car —

Hugo L. Black:

What do you mean two of the men?

Sidney M. Glazer:

Excuse me two of the detective, detective and two of the other police officers —

Tom C. Clark:

None of the —

Sidney M. Glazer:

No, and they went down the car and one or more of them said they looked on the seat for cigarettes, they looked on the dashboard for cigarettes, there were no cigarettes on the seat, there were no cigarettes on the dashboard, the detective pushed opened the unlocked glove compartment and at that point he found the two guns, then they attempted to open the trunk, I think at that point but they were unsuccessful, so they went back, went back —

William J. Brennan, Jr.:

Are you suggesting that there was consent for the searching?

Sidney M. Glazer:

No, no —

William J. Brennan, Jr.:

So I would like to (Inaudible)

Sidney M. Glazer:

Yeah, he said he is looking for cigarettes.

Hugo L. Black:

Is that what you say, Sykes wanted to get cigarettes.

Sidney M. Glazer:

Sykes said he wanted his cigarettes, but —

Hugo L. Black:

Has he testified about Sykes?

Sidney M. Glazer:

He didn’t testify in motion of this press Your Honor

Hugo L. Black:

He didn’t.

Sidney M. Glazer:

No, but the officer, he says this is a very good element, he testified at the trial but not on motion to suppress.

Hugo L. Black:

He didn’t testify anything about this.

No issue came of —

Sidney M. Glazer:

On the motion to suppress — on the motion to suppress, the only witnesses were the three police officers, they were called by the defense counsel.

William J. Brennan, Jr.:

Well I gather if you are not suggesting consent then in fact Sykes asked for cigarette is quite irrelevant we may treat the case.

Sidney M. Glazer:

Yes I am —

William J. Brennan, Jr.:

Having the three men incarcerating the officers went down 15 minutes later and searched the car.

Sidney M. Glazer:

The reason we didn’t argue consent because the officers they, were is so nebulous they just said he asked for the cigarettes and then the officers went down —

William J. Brennan, Jr.:

How would, suppose the only change we have in factor was that when they searched the three of — the persons that were three, they found a hotel room key and the officers have done then what they did do with the car.

Sidney M. Glazer:

Well, I don’t think —

William J. Brennan, Jr.:

They have taken the key down to the hotel room and —

Sidney M. Glazer:

I don’t think you can equate the hotel room or the car.

I think that —

William J. Brennan, Jr.:

You can concede that that would be an invalid search.

Sidney M. Glazer:

Right I would concede it.

William J. Brennan, Jr.:

And yeah, here you have the three defendants —

Sidney M. Glazer:

Well, the difference —

William J. Brennan, Jr.:

Incarcerated and the car available at police seizure.

Sidney M. Glazer:

Well, the difference, the difference is, one, that the car was part and parcel of the offence of loitering.

So you have the problem is, is that —

William J. Brennan, Jr.:

Did you need, did you need the car to prove the defense in loitering into this —

Sidney M. Glazer:

No, no but —

William J. Brennan, Jr.:

I should think that when rather argue against you there are no visible means to support it, they had the car.

Tom C. Clark:

The term as I remember, we all remember who filed the case, the court struck down to search in Connecticut where they painted some (Inaudible) —

William J. Brennan, Jr.:

I’m familiar with the case Your Honor.

Tom C. Clark:

I was wondering, I am not indicating that I don’t buy your explanation, but I was wondering and here the car was under custody of the police, they drove it to the place that they selected.

They parked it in the way in which they decided to park it and to me, they control of it.

Tom C. Clark:

So what harm could have done, what danger was there, they had gone over to get the search warrant, rather than going down there without a search warrant.

Sidney M. Glazer:

Well, as I understand, it seems to me in the related case Justice Brandeis in United States versus Lee or Lee versus United States had a problem of the seizure of a boat or a vessel and they both were seized and it seems to me indicates there is some, I may not be exactly clear, there are some statement that the greater includes the less, in another words, if you have to right to see something you have a right to search it.

(Inaudible)

Sidney M. Glazer:

I am not sir — United States versus Lee, now I am sort of vague on the facts but —

Hugo L. Black:

It’s in your brief?

Sidney M. Glazer:

It’s the 274 US, its – (Inaudible) decided for the proposition when something is in plain view you can, you have a right to seize and you can seize it.

Earl Warren:

(Inaudible) for probable cause, the officers must have found that they had loitered in an idle or a dissolute, or a disreputable, or a loafing way in order to give them reasonable grounds, must they not?

Now which one of those do they come under?

Sidney M. Glazer:

Well, as I said to Justice Goldberg I think it’s a problem of, one, this ordinance is so vague on its phase that a Kentucky Court could not construe it to constitute an offence and, two, that the issue really, issues as far as the officers are concerned is, we are not here dealing with the conviction under the statute or under the ordinance the problem is whether or not the officers or police officers acted arbitrarily.

Did they unlawfully invade the privacy of these men?

It certainly isn’t the function of the police to construe statutes or construe ordinances.

Earl Warren:

Well, do you mean if they done none of these things, do you mean if they had not loitered in either an idle or dissolute or a disreputable or loafing way that the police could still —

Sidney M. Glazer:

(Inaudible) No I think that basically that these men did loitered in an idle dissolute disreputable way and the problem is —

Earl Warren:

What was there in relation to being dissolute, what was about their conduct that was dissolute?

Sidney M. Glazer:

Well, maybe it’s maybe not dissolute maybe disreputable.

Earl Warren:

What was about their conduct was disreputable?

Sidney M. Glazer:

Well, I would say that the disreputable feature of the conduct is remaining there under circumstances which indicated to reasonable policemen that they were a menace to persons and property in the vicinity.

Earl Warren:

On the lighted street in their own, in their own car that apparently no objection haven’t been made to the use of the car, no claim that the car was stolen.

Sidney M. Glazer:

Well Your Honor, the police, when the police came upon the scene they did not know that this car belonged to these men.

These men only, these men were all said they were all are unemployed.

They didn’t have any registration receipt which is required to be kept in the car at all times under Kentucky Law.

So the indications and they are all unemployed.

There was no indication that they said they bought the car the day before, there was no indication that they could have, the police could reasonably believe that they have this, could have the financial condition to buy such a car even if the car is worth $400, usually even a loan company would require some sort of a security or at least that you are employed before they even let you have a $400 car.

Earl Warren:

How do you know they didn’t use their last dollar to pay for the car?

Sidney M. Glazer:

Well, of course that is possible, the — no question as far as nobody developed those facts.

Earl Warren:

How do you know that they didn’t have in the bank?

Sidney M. Glazer:

Well, I don’t think they asked him whether they had money in the bank.

Earl Warren:

Or own property, wouldn’t that, wouldn’t that disapprove the idea of being —

Sidney M. Glazer:

Well —

Earl Warren:

— arrested for being idle, there are lot of people loitering —

Sidney M. Glazer:

No, well it seems to me, it seems to of course that there were questions asked and there were questions not asked.

And of course the police could have asked other questions and of course other questions could have been developed and the motion was suppressed.

But I think based on what was asked, I think the inference is that they didn’t have any funds, sure you can always — I mean you could have asked, somebody could have asked another question, but I think upon what the police found out, I think if it was reasonable for them to think that these men didn’t have any visible means of support.

William J. Brennan, Jr.:

(Inaudible) they searched 15 minutes after they had locked them up, the police had waited 48 hours to do it?

Sidney M. Glazer:

Well I would think if they had waited 48 hours the search would be unreasonable.

I mean —

Tom C. Clark:

What time you are going t draw?

Sidney M. Glazer:

Well I think it’s substantially contemporaneous, I think the situation is substantially contemporaneous.

I mean is it — would you compare two situations, which is more reasonable?

I mean here we are dealing with local law enforcement, which is it more reasonable for a local law enforcement agency when they have a situation which warrants search of the car, search the car at the scene or is it just as reasonable for them rather than searching the car at the scene, take the car and search it at the police garage as soon as — practically as soon as they get to the police garage.

Tom C. Clark:

Well I suppose the officers that left the car there on the street, taken these three to the police station, locked them up and then returned to the car?

Sidney M. Glazer:

Well I think that’s a more difficult query.

I think if they returned to the car just after they locked them up, maybe there wouldn’t be any significant difference.

Tom C. Clark:

(Inaudible)

Sidney M. Glazer:

What?

Tom C. Clark:

(Inaudible) well if they left the car on the street, then (Inaudible)

Sidney M. Glazer:

Well that’s right, in other words, then the problem there is, where or not they are not having seized the car, not having seized the car initially that they could go back.

Hugo L. Black:

(Inaudible) and found these three people there that time of night, information has been all these hours, that they had a right to say, one of you (Inaudible) and I would suppose to main grounds would be and seem to me a pretty good ground, because the policeman didn’t want their lives endangered by people who were there had no money, loafing there for five hours, but you get a clear way from that when they moved that car out, go to the police station and the police people are safe.

They were not in any danger then from anything that is in the car.

Sidney M. Glazer:

No I think we would have a much better case if on the spot, on the spot they made a searched if you certainly consider it from a point of view of weapons, if all they can search for is —

Hugo L. Black:

(Inaudible)

Sidney M. Glazer:

What?

Hugo L. Black:

Well they only had a right to do it from the point of safety didn’t they, the didn’t have the right to go make a general search —

Sidney M. Glazer:

Well no, they didn’t have a right to make a general search, but it seems to me that —

Hugo L. Black:

I do think myself that under those circumstances I’d find it hard to say a policemen couldn’t protect his life from people he didn’t know, search a car to see if there are any weapons, under those circumstances, but it’s quite different when that car is taken away and the policeman are no longer in any possible danger.

There are cases all the time where officers are hurt by the people that they arrest night or some other time, it’s the only thing that could be done.

Sidney M. Glazer:

If —

Hugo L. Black:

(Inaudible) they are being hurt.

Sidney M. Glazer:

No, that’s not — well certainly if one reason, one reason which this Court had said for, and an important reason for making the search is to protect the officers and to prevent their means of escape.

However there are other — there are two other reasons which –

Hugo L. Black:

What are the reasons?

Sidney M. Glazer:

The other two reasons are to seize the instrumentalities of a crime —

Hugo L. Black:

They wouldn’t have any instrumentality of the crime of loitering that I can think of vagrancy —

Sidney M. Glazer:

Well —

Hugo L. Black:

It’s not (Inaudible) because they haven’t done anything, not because they have done.

Sidney M. Glazer:

Well you are arresting one, because they haven’t done anything and two you are arresting them because you think they are about to do something, as their conduct is such.

Assuming we had a situation like the America Law Institute has envisioned and is that you are arresting because their conduct is a — is sort of like — is a menace to the people, in other words instead of having a drawn gun, menacing the people around they are just like if a man is in the alley he is constituting some sort of menace.

So the problem is —

Hugo L. Black:

Well the time to do that would be then, you’d certainly have ample time to follow the order and the processes of the law when you took the car.

Sidney M. Glazer:

In other words obtain a search warrant.

Hugo L. Black:

I understand your idea, your argument that when people are found in some places like stalking (Inaudible) in an alley behind somebody’s home, something of that kind or behind a store, where there are windows that they can break through or you might think they are doing something certainly that time of night.

But if they get the car and take it off, it seems to me like they got all the time in the world, they had (Inaudible) in one case, that something about, you don’t have to get the search warrant at least, but under other circumstances they do have to get it.

Seems to me like your weakness, main weakness in your case is the fact that they took it back up to this place and probably kept there waiting and they just decided they wanted to look and see if they could find something, they didn’t know what.

Sidney M. Glazer:

Well of course, it seems to me if you have a case where it’s clear that’s the police officers can search not only for weapons to — suppose you have a situation when somebody is driving a car and there is probable cause to believe the car contains liquor, and as Carroll, specific Carroll type of situation, the police officers instead of searching the car at scene take the car with the man to the police garage and conduct the search.

It seems to me that if they have a right to search not only for weapons but for —

Byron R. White:

(Inaudible) car and then when they — in the case vagrancy, you don’t suspect them of doing anything but loitering as Justice Black says, or if you’re really left with just the safety factor?

Sidney M. Glazer:

Well I don’t think — I think you are loitering, you just can’t look at loitering, loitering certainly has a safety factor and it’s true that this Court has said that generally speaking a search —

Byron R. White:

Are you suggesting that you can arrest someone for loitering and automatically you are entitled to suspect that he is going to commit a crime?

Sidney M. Glazer:

Well no I think —

Byron R. White:

Some other crime?

Sidney M. Glazer:

Well I think you have to consider the loitering in relationship to the circumstances under which the arrest is made and in connection with — if the circumstances are such which even though the police who make an arrest for loitering can’t pinpoint that the man is about to break into a house or about to grab a woman off the street, I think if the circumstances are such, I think that that those are the circumstances that you have a right to make the same type arrest as you have in a normal crime situation where the right to make an arrest is for the instrumentalities and fruits of that particular crime, because you know by the time you make that arrest what particular crime has been committed.

In other words, what you’ve got — what you have in a situation is you have a problem of crime prevention and it seems to me that it’s not unreasonable if the circumstances are such —

Byron R. White:

(Inaudible) have any events for vagrancy automatically means that somebody is about to commit a crime, at least it means enough that you could search his car, if you have to arrest him in his car.

Sidney M. Glazer:

No, I would say it depend on the circumstances, circumstance — I mean if you just had a situation where you arrested somebody because they are unemployed and —

Byron R. White:

Well because —

Sidney M. Glazer:

(Inaudible)

Byron R. White:

They were loitering as you say.

Sidney M. Glazer:

I mean the circumstances of this case where they have been around on the streets of Newport for five hours, we have three men there men there for five hours where the give the police an evasive and false explanation where there is a likelihood, the reason that they are waiting there is they are waiting for somebody perhaps, if you want to speculate they are waiting for somebody to come out of night club who they can rob or mug it’s — and their conduct really, their loitering is closely related to other offences, but —

Byron R. White:

They would have had perfectly a good reason to search the car at the, right where they arrested the men, where they have been sitting for five hours, for reasons other than their personal safety.

Sidney M. Glazer:

Yes, yes.

Byron R. White:

And that those reasons were perfectly sufficient to search the entire car and if they survive taking car to the police station.

Sidney M. Glazer:

Well of course I don’t know whether you know, first place you don’t start off with a search of the entire car, the search becomes initially what they do is —

Byron R. White:

No but you didn’t say they could, I mean (Inaudible) —

Sidney M. Glazer:

Yeah that’s a more difficult case, the more difficult case, but this case isn’t that — I don’t know, we don’t have to go that far in this case.

Byron R. White:

Okay, oh yes.

Sidney M. Glazer:

In this case the problem is was it reasonable —

Byron R. White:

To look and search the car.

Sidney M. Glazer:

For the police to look in the glove compartment of an automobile when the men said that they bought the car the day before, they had, they are unemployed and they didn’t have any registration receipt or any bill of sale indicating that they had purchased the car.

It seems to me not unreasonable for the police to look in the glove compartment for example, tell them whether there is any indication of who the owner of the car is in the glove compartment.

Earl Warren:

(Inaudible) commandeered the car and having driven it to the police station and parked it in a lot, and having charged men with vagrancy and locked them up in jail, what would have been the determent to the police other than inconvenience for them to have gone a to a magistrate and gotten a search warrant for that car.

Sidney M. Glazer:

Well, assuming that they have a right to hold the car and that somebody, that Sykes’s wife couldn’t come up to the police station and drive the car away, assuming that somebody, in other words this is my car, Sykes’s wife who turned out was the actual owner the car, assuming that Sykes was arrested like he was here and he asked to make a phone call and he telephones his wife, this is 3’o clock in the morning, his wife comes and says I want my car.

Now, you still have a problem, the police have a right to hold that car at that point or they have to release, the police say well, we are not going to release the car we’re applying for search warrant.

I don’t know in other words, if they have a right to hold the car, they have a right to hold the car and apply for a search warrant against anybody who wants to take the car then I see no determent in applying for search warrant, but if they don’t have the right to hold the car and somebody like Mrs. Sykes can come and drive it away and then I say there is a determent to.

Earl Warren:

But you started arguing yourself out of court, if you say if they didn’t have a right to hold the car but they still have a right to search it.

Sidney M. Glazer:

Well our argument is that they had a right to search the car and they had the right to hold the car but in response to your question, your question was, should they have gotten — should they have gone and obtained a search warrant.

Earl Warren:

Yes, I just asked you, how the police would suffer other than through the inconvenience of going to a magistrate and asking for a warrant, would they suffer in any other way?

Sidney M. Glazer:

They wouldn’t suffer providing they are holding the impounding of the car if they, they had a legal right to hold the car, they wouldn’t suffer.

Earl Warren:

Why wouldn’t those facts lead us into, to say that they should have gotten the warrant?

Sidney M. Glazer:

Well, the only thing that bothers me in a situation, suppose is it more inconvenient for a citizen to have his receipts base, is just more inconvenience to him to have his car seized and taken into the custody and impound it for a period of time or is it more inconvenient for him to have the search, car searched and then released.

No, I don’t mean — what I want I’m trying to say is, if you look from a point of view, suppose you had an ordinary citizen and he is arrested under suspicious circumstance, he doesn’t have his title papers of car and the police wanted to conduct an examination, they want to examine the car to determine whether or not this is his car, they can’t readily conduct it any other way.

So I don’t know whether it’s — it would be more — if a State, if the State says, we will authorize the search of the glove compartment to see whether or not there is anything in the glove compartment which is to substantiate his ownership and then let him go on his way, which is more of an invasion, is it more of an invasion to have the — to permit a limited search of the car, or is it more of an invasion to seize and impound the car?

Earl Warren:

But you can’t say here very well that they were just searching at that compartment to see if everything was all right and then let him go on their way, because you had already booked him and put him in jail or put all these men in jail.

So, if you had done that perhaps at the scene of the arrest, it might have been one thing, but here you have closed that door.

You have taken his car in possession, the police officer drove it from the city street where it had a right to be down to the police department, put it in the lot, put them in jail and lock them up and then after that they go and search the car.

Now I understood you did say in response to Mr. Justice Clark’s question that if there had been a substantial period of time elapsed between the time that they put these men in jail and the time they went down to search the car that if they would of necessity have to have the search warrant.

Sidney M. Glazer:

Yes that would, it seem to me if there is a substantial time in the lapse and there is certainly absolutely no — there is no time, there is no time of the essence problem there, they can use the lapsed time to obtain a search warrant.

Earl Warren:

Where do you draw those limits?

Sidney M. Glazer:

Well it seems to me that in this situation where you have an arrest, booking of the search, it’s sort of one contemporary — contemporaneous operation, there is no lapse of time, I mean it just — if it’s a law it certainly is a question of a degree, but I think as far as this is concerned I think the degree is that is part of one transaction.

(Inaudible)

Sidney M. Glazer:

Well of course, speculate as to what you know I mean you can’t say what’s in the glove compartment.

(Inaudible)

Sidney M. Glazer:

Well in fact it may in that sense, if there was — this is, this was part of a larger crime it may have enabled the police to —

(Inaudible)

Sidney M. Glazer:

They didn’t approach that.

Just a word on this problem of two lawyers as our brief points out, this wasn’t raised at any stage of the case and I think in the trial of any case, of any case whether several defendants, no one can say whether you have paid or appoint counsel by hindsight what’s the better course.

This Court knows in many cases where the lawyers were not appointed, defendants choose, defendants choose to have a joint counsel and sometimes you are much better off with joint counsel at least with joint counsel you don’t have one lawyer pulling in one direction and another lawyer pulling in another direction and that in this situation where the trial lawyer who talked to these individuals didn’t see anything in their circumstances to one separate counsel, I don’t think that you can say that as a matter of law certainly when this is raised below — last stage is that they should have a separate counsel.

Francis M. Shea:

Mr. Justice Clark, the record reference of the point, the car was towed to a parking station and garage is found on the bottom of the page 61 and the top of the page 62.

Unless the Court has questions on that, I have nothing to add.

Earl Warren:

Mr. Shea before you sit down I would like to take this opportunity on behalf of the Court to thank you for your service in the case.

It is a public service and the Court is always comforted by the fact that busy lawyer like yourself are willing to undertake it for the public service, the defense of indigent defendants.

Francis M. Shea:

Very pleasure to appear before this Court Your Honor.

Earl Warren:

We thank you very much and Mr. Glazer we thank you for the earnest and diligent manner which you represented the government.

We will recess now.