Rea v. United States

PETITIONER:Rea
RESPONDENT:United States
LOCATION:

DOCKET NO.: 30
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

ARGUED: Nov 10, 1955
DECIDED: Jan 16, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – November 10, 1955 in Rea v. United States

Earl Warren:

— on the docket, Dantan George Rea versus United States of America.

Mr. Sommer.

Joseph A. Sommer:

May it please the Court.

This case arose in August of 1953 when a federal narcotics agent searched the home of the petitioner in Albuquerque, New Mexico and seized from his home what was claimed to be narcotics and other pieces of property such as tobacco cans and a couple of pipes.

The search and seizure were conducted under the authority of a federal search warrant which had been issued by the United States Commissioner of the Court in Albuquerque, the federal court.

After he had his home searched, a federal grand jury returned an indictment for the possession of marihuana without having paid the necessary tax thereon.

Nine months later, be — as the case was coming up to trial, the petitioner moved to suppress the evidence.

He did not move for a return of any of the evidence, including that which was not claimed to be contraband.

The Court granted the motion and the Federal Government then moved to dismiss the indictment and it was dismissed.

Thereafter, the federal narcotics agent went to the state official as a state justice of the peace and swore out a warrant under New Mexico law for the illegal possession of marihuana.

It’s stipulated that he used the information he had obtained through the federal search warrant to the execution of the federal search warrant.

It’s also stipulated, and stipulated at the hearing, that he intends to turn over to the state government for the state prosecution the evidence which was illegally seized and which is now in custody of the Federal Government having been taken under this illegal search warrant.

At this point, the petitioner then went back in the federal court and moved for an order to — to be served upon the federal narcotics agent to show cause why he should not be held in contempt for having violated the federal court’s order suppressing the evidence.

And it further moved that he be enjoined and any federal officials having federal custody of that which was seized from presenting it in state court.

Now, at the present time, the state prosecution is pending and it — it’s at this juncture of the case that the petitioner is seeking to have these federal officials enjoined from using the evidence and the knowledge which they obtained during the execution of this illegal search warrant.

Under the Fourth Amendment, the issues which are raised in the view of the petitioner are, first, whether or not the Fourth Amendment demands as a part of the Fourth Amendment at the remedy of suppression be given where the Federal Government has illegally seized something pursuant to an illegal search and seizure.

Felix Frankfurter:

Is your case versed entirely on the constitutional grounds?

Joseph A. Sommer:

Not entirely, Your Honor.

Felix Frankfurter:

But why do you begin with that?

Why do you begin with the constitutional ground?

Joseph A. Sommer:

I begin with this, Your Honor, because I think that is the — the strongest point.

Felix Frankfurter:

I wonder how it would be fair to say, you don’t begin with the constitutional point, you end with it.

However, that’s your argument and department.

Joseph A. Sommer:

Very well, Your Honor.

Felix Frankfurter:

We always wanted a decision on the broadest possible point.

Perhaps, I agree strongly about that because when I was young, I tried to — just ought to do that, the courts to do that and is also is not our loss in the case entirely.

Joseph A. Sommer:

Very well, Your Honor.

In addition — still under the question of the Fourth Amendment.

If this remedy is one which the amendment itself demands, the remedy of suppression and in return of goods, in case here there’s no contraband involved, then the question is, is this binding on the state courts as courts of — courts which are subject to the Constitution?

And finally, if it is binding and they could not receive it, should the Federal Government — the federal courts under these circumstances enjoin federal officials from presenting this evidence in a state court.

Joseph A. Sommer:

That would be the constitutional issue under the Fourth Amendment.

The petitioner does not rest entirely upon the — the Fourth Amendment.

In addition, it his contention that this constituted an abuse of the federal court’s process, it was carried out by federal officers acting pursuant to illegal process and it is the obligation of the Court, the federal court, apart from the Constitution, to prevent an abuse of its process and to restore the status quo.

Taking the argument up in the — in the inverse order, I shall begin with the inverse order which I’ve just mentioned.

I shall begin with the question of whether or not the State — whether or not the Federal Government — the federal courts should have just as a matter of preventing the abuse of its own process, have ordered these federal officers not to testify and also order the — the evidence which they seized, not turned over to the state official.

As I’ve indicated a moment ago, in this case, the action was initiated by a warrant which issued out of the federal court in New Mexico.

It began with an error in the federal court.

The United States Commissioner, who is an officer of the federal court, improperly and contrary to the Constitution issued the warrant in question.

It was executed and it was processed of the Court which was being executed, just as a marshal would execute process for an attachment.

This was being done in a — in a criminal case.

And this Court has held in Wise versus Henkel, when the case came before it, that the Court has the authority to consider and decide applications for returns of things which are illegally seized, wholly apart from the constitutional issue.

In Wise versus Henkel, the trial court, after there had been an illegal search and seizure pursuant to federal process, ordered that the United States attorney return the property which was seized.

The United States attorney refused to do so and he was held in contempt.

He attempted to appeal to the United States Supreme Court on the grounds that there was federal constitutional question involved.

And this Court held that the application for a return did not raise a constitutional question, and therefore, they denied his appeal.

And in connection with that, they said, the authority of the Court to consider and decide the application for the return of the books and papers existed wholly irrespective of whether there was a constitutional right to exact the returns of the books and papers.

That is to say, it was within the power of the Court to take jurisdiction of the subject of the return and pass upon it.

And as a result of its inherent authority to consider and decide questions arising before it, concerning an alleged unreasonable exertion of the process of the Court, that is the power which I suggest to the Court would enable and should have caused the Federal District Court in New Mexico to undo what had been done pursuant to its illegal process, I should say an abuse of its process.

And it had that inherent authority and right to do so apart from the constitutional issue.

This is very similar —

Hugo L. Black:

What do you mean by inherent authority?

That doesn’t — that is not constitutional — sorry, inherent.

I don’t think —

Joseph A. Sommer:

That the Court, any court has a power as a court.

It inheres in its power as a court to control its own process, including undoing any abuse of its own process.

Hugo L. Black:

Well, you — if it’s inherent, would it be superior to the congressional power in that field?

Joseph A. Sommer:

No, Your Honor.

Hugo L. Black:

You don’t — you don’t speak of it —

Joseph A. Sommer:

I do not —

Hugo L. Black:

— in this way?

Joseph A. Sommer:

Congress has not specifically —

Hugo L. Black:

Yes.

Joseph A. Sommer:

— given this power and in the absence of giving it as a court in able to — in order to — to be able to conduct its function as a court.

It’s necessary that a — it be able to control its own process.

As for example, if it authorized an illegal attachment and the person who was a victim of the illegal attachment would certainly come in the Court and could come in the Court, and ask that the attachment be dissolved because it was illegally done in the first place and this is comparable to that.

Now, certainly in this case, if — after the warrant, the illegal warrant had been obtained by the federal officer and before it had been possible to search the petitioner’s home, the petitioner had been able to get in the federal court and get into the — to the federal judge.

He could have moved to quash the warrant and it would have been quashed as it was quashed after the illegal act was done.

Now, the mere fact that there was not sufficient time, they did not succeed in running to the federal court house before the federal officer had succeeded in executing the process, should not prejudice him.

He should be in exactly the same position, as if he had been able to get in the federal court at the time the process were issued, but before it was executed.

And the Court should, under those circumstances, should have undone what was done and of course the only way in which it could undo what has been illegally done was to suppress and treat the evidence as if it did not exist, and as if the Federal Government did not have the knowledge which it should not have had.

In other words, it should restore the status quo which was disturbed by the Court’s, having issued in the first place, its illegal process.

Hugo L. Black:

Do you have — have the power to return?

Joseph A. Sommer:

No, Your Honor.

We simply ask to have it suppressed and not returned.

Stanley Reed:

What — what was the property?

Joseph A. Sommer:

The property —

Stanley Reed:

Did the record show that?

Joseph A. Sommer:

The record shows that it was claimed to be marihuana —

Stanley Reed:

(Inaudible)

Joseph A. Sommer:

— and I believe two tobacco cans and two pipes.

Stanley Reed:

What — what did you ask to be done with it?

Joseph A. Sommer:

We simply asked that it be suppressed.

Stanley Reed:

Quash the search warrant, of course, that was done so —

Joseph A. Sommer:

And — and the search warrant quashed which was done.

Stanley Reed:

Well, what — what piece of paper do you rely on that you filed in the Court, in the — in the District Court?

Joseph A. Sommer:

We filed a motion to suppress —

Stanley Reed:

Why did — here’s a motion on page 3, a motion to quash the search warrant?

Joseph A. Sommer:

Yes, Your Honor.

That is the —

Stanley Reed:

That’s the sole request that you have?

Joseph A. Sommer:

No, that is not, Your Honor.

After that had been done, after the Court had suppressed the evidence and the federal officer then went to state officials, we came back in the Court and again asked that — we asked that he be held in contempt or rather that an order be issued to show why he should not be held in contempt.

Stanley Reed:

Yes, but nothing else?

Joseph A. Sommer:

And we also asked that he be enjoined in the — and federal officials having federal custody of this — of the illegally seized property that they be enjoined from transferring it out of the custody of the Federal Government.

That was on a second motion after there had been an original suppression.

Stanley Reed:

Where is that motion?

Joseph A. Sommer:

That is on page 5 of the record, Your Honor.

It’s entitled a motion for an order to show cause and other relief that continues over to page 7.

You prefer not (Inaudible)

Joseph A. Sommer:

I would not say —

It’s hard to enjoin the use of this evidence in the state court (Inaudible)

Joseph A. Sommer:

It was — broadly speaking, it’s discretionary but we contend that’s an abuse of discretion not to have done it in this case.

The power itself can be turned discretionary, but it’s our claim that — in this particular case, he abused his discretion in not granting the relief asked for.

Stanley Reed:

Well going — I’m going back to that, what he wanted.

He wanted an injunction forbidding him to testify in the state court?

Joseph A. Sommer:

Yes, Your Honor.

Stanley Reed:

The suppression of the evidence, of course, the mere suppression of the evidence and transferring it out of the legal custody would be of no of use to if he would.

Joseph A. Sommer:

Well, I think the word suppression, Your Honor, includes suppressing all knowledge and effectively that means stopping somebody from testifying, same as it would if it were in federal court.

Stanley Reed:

So, it will be all be covered by the cause, forbidding in enjoining him and then to testifying as to the existence, character, and possession?

Joseph A. Sommer:

Yes, Your Honor.

Stanley Reed:

So what you want the federal court to do is because of the — that the search warrant was illegal and invalid.

You want them to — to order a federal officer not to testify in the state court?

Joseph A. Sommer:

That is part of our relief, Your Honor.

The other portion —

Stanley Reed:

What else is there?

Joseph A. Sommer:

The other portion of our relief is even if they can testify that they cannot turnover physically the evidence that was seized in addition of testifying.

Stanley Reed:

That — that wouldn’t be of much use to if you didn’t have the suppression in order to — not to testify, wouldn’t it?

Joseph A. Sommer:

It might be of some use —

Stanley Reed:

Might be useful.

Joseph A. Sommer:

— it would be — wouldn’t be for relief, Your Honor, in our view.

Felix Frankfurter:

Well, your restriction, restrict — the restriction you desire upon his testimonial appearance in the state court is merely a restriction as to the content for the evidence of — pertaining to evidence which the federal court had already suppressed and said could not be used in the federal court?

Joseph A. Sommer:

Precisely, Your Honor.

We treat that —

Felix Frankfurter:

He can testify about everything else under the sun to take court and permit?

Joseph A. Sommer:

Yes, Your Honor.

The type of evidence, the testimonial evidence I’m speaking of would be comparable to photostatic copies, for example, if papers that had been illegally seized.

In a case of suppression, in the federal court, at least, where the evidence has been suppressed, the federal agents cannot produce photostatic copies of paper that they seized and turn back nor can they testify about the contents of those because that’s included in the word suppression.And that is a relief which we seek so far as state court is concerned.

It’s a relief which is identical in a state court with that which would be given and was given in the federal court.

(Inaudible)

Joseph A. Sommer:

Well, I think it’s probably included in facts about the supposed evidence, Your Honor.

(Inaudible)

Joseph A. Sommer:

Yes, Your Honor.

Anything that he learned as a result of his illegal search and seizure.

(Inaudible)

Joseph A. Sommer:

I beg you pardon?

Broadly an application of the Weeks’ rules (Inaudible)

Joseph A. Sommer:

Yes, Your Honor.

I should say an application of the Weeks’ rule in a state court.

It has never been —

(Inaudible)

Joseph A. Sommer:

I would say an application of the Weeks rule, Your Honor, because I don’t think the Weeks rule contained in it a limitation that — that it necessary defy the federal courts.

Felix Frankfurter:

But you’re not asking anything up here of the state court?

You’re not asking for an application of this in the state court?

You’re asking for some action by the federal court.

Joseph A. Sommer:

Yes, Your Honor, entirely.

Felix Frankfurter:

There isn’t application over the Weeks doctrine to the state court.

Joseph A. Sommer:

There’s an application of the Weeks doctrine to federal officials as it — as it would —

Felix Frankfurter:

Why — why do we have to talk about an application of?

I don’t know what that word means.

You’re not — if you say you do not — you rest this on the power of the federal court not to allow an official of the Federal Government whose conduct has already been declared illegal to disregard that determination of illegality in the federal court, the federal action that he shouldn’t in the broader kind of a way beat the devil around the stump by testifying in the state court.

Felix Frankfurter:

This isn’t an injunction that binds with the state court.

This is an injunction that binds the individual.

Joseph A. Sommer:

Precisely.

Felix Frankfurter:

And the state court hasn’t got a thing to do with it.

Joseph A. Sommer:

None whatever — none whatever.

Felix Frankfurter:

The consequence may be that the state court wouldn’t get certain evidence which is otherwise would get, this is action by the federal court in regard to federal officials about something that the federal court had already decided.

Joseph A. Sommer:

That’s — that states my point precisely.

Stanley Reed:

What would — what would happen in the state court if this agent was summons by the state court to testify?

Joseph A. Sommer:

If he were summoned by the state court, the federal official who had been ordered, suppose he were given a — a subpoena duces tecum and also ordered to testify about this matter which he had been enjoined.

I would say he would be obliged not to testify and if the state court held him in contempt, his relief would be to seek a writ of habeas corpus from the federal court in vindication of the federal right which was involved.

(Inaudible)

Joseph A. Sommer:

It prevents the state court’s process from reaching into — into federal courts, Your Honor.

The same as — the same as a situation where the federal court has attached in pursuance of a federal case, certain property and we’ve had exactly that case in (Inaudible), I think it was, where once the state — the — the federal court had custody, it was in custody of law, so to speak, at that time a state court tried to reach it as they would try — be trying to do in this case.

And it was held that the federal right and the right of the federal court to maintain its custody of what is already taken was paramount in such a situation and could not be reached.

I would say its more an attempt if the state court should do it, by the state court to enter — interfere with the federal court’s process and with — with what was obtained as a result of its action, its more of an interference by them than it is a reverse because we’re not touching any state official or state court.

The practical result is they simply cannot reach something which the Federal Government has which it never should have had.

Felix Frankfurter:

But this is no more including into the state process that if a federal court seizes property which the state court there — after which the state court thereafter seeks to adjudicate and the state court there would be including in the federal process considered by a reversal.

That’s your argument?

Joseph A. Sommer:

Yes, Your Honor.

I said — this, the argument I am now advancing is — is apart from the Fourth Amendment and the Weeks doctrine, the constitutional doctrine.

And assuming for the moment that if the State through some means or another actually got possession of the physical property that’s here involved, assuming that it might, under the Constitution use it, I still say that this federal court has an obligation not to make it available to it.

It would be comparable to a situation where an F.B.I. man is subpoenaed in the state court in order to produce certain confidential documents, of course, he would refuse.

And even though it might be true that if the information contained therein got in the state court, the state court might use the information, still the Federal Government and its federal agents have an obligation in the first place not to make it available and it’s simply the enforcement of this obligation which we are here seeking.

That same situation arose in Boske versus Comingore which is cited in the brief, where the internal revenue officer had certain regulations, which of course were passed pursuant to law.

He was not to turn over to anyone else certain confidential documents.

The State of Kentucky in a civil case desired to get the returns which had been made by the man against whom they were bringing a civil case.

So they ordered and they subpoenaed the federal official, the internal revenue official to come in and bring those documents.

He refused to do so and they held him in contempt and that he was freed on a federal writ of habeas corpus.

On the basis, they had no obligation.

Now, it might be true in that case that the State of Kentucky had succeeded in getting these papers that had been submitted by their defendant, that they could have used him and obtained the judgment against him on the basis of it.

Joseph A. Sommer:

Nevertheless, in such a situation, I think it’s clear that the Federal Government had an obligation not to turn it over and the federal agent had the same obligation.

And in that situation, if — if the federal agent were threatening to turn over something which he had in his possession which the law said he could not turn over, I’m sure the federal court would enjoin him from doing it.

The same as it would enjoin an F.B.I. man from turning over his confidential reports to a State contrary to his regulations in the law.

Earl Warren:

I take it, Mr. Sommer, that if there was a state agent present at the time this property was seized and — and he wanted — was subpoenaed to testify in the state court, the action you seek would not — would not prevent him from — from testifying, would it?

Joseph A. Sommer:

I would not say that it would not, Your Honor.

In such a situation, of course, he’s not executing the illegal warrant but —

Earl Warren:

He testifies to what he saw and — and he is not a state agent and not a federal agent, and you have sought only to enjoin the federal agent, have you not?

Joseph A. Sommer:

Yes, our action only goes to that.

Earl Warren:

Yes.

So if — if a state agent or a — or a private individual happened to see what was going on at this time and testified before the state court, the — the remedy that you seek here would not — would not prevent the state court from using that testimony, would it?

Joseph A. Sommer:

No, Your Honor, because we haven’t sought that remedy.

Earl Warren:

Yes, that’s what I — that’s what I asked.

Joseph A. Sommer:

Yes.

Earl Warren:

You didn’t seek that remedy?

Joseph A. Sommer:

No.

Earl Warren:

You didn’t seek to tie the hands of the state court insofar as using any — any evidence that was available to it under state rules.

Joseph A. Sommer:

That’s entirely correct, Your Honor.

Earl Warren:

Yes.

And I understood here that (Inaudible)

Joseph A. Sommer:

He was, Your Honor.

He instituted —

(Inaudible)

Joseph A. Sommer:

To this extent, Your Honor, he went before justice of the peace and he swore out a warrant and in the warrant, of course, he put the information which — which he had obtained.

Now, that was all that was done, the warrant was issued, the petitioner was arrested and the case is that — at that posture now.

There’s been no process issued out of state court and the case is simply pending.

Nothing further has been done.

He initiated the process though.

Afterwards, a suppression in the federal court while he (Inaudible) himself free voluntarily (Inaudible) claimed evidence through an affidavit and then (Inaudible)

Joseph A. Sommer:

Yes, Your Honor.

Technically, of course, the Federal Government would not be the prosecutor but if the Federal Government is the one that — the one with a supply — that is supplying the means and the only means by which the case can be prosecuted and then it’s the one that initiated the prosecution.

Hugo L. Black:

One of the state process involved here at all?

Joseph A. Sommer:

No, Your Honor.

It is not.

Why do you have to do it so far as though the case (Inaudible)

Joseph A. Sommer:

I am simply in — I think the question was asked but I’m anticipating that it’s possible to state a will.

And I believe the question was asked specifically, what would happen if the state did subpoena him, is that not an interference with their process?

It has not been done but conceivably it could be and —

Hugo L. Black:

The next step beyond —

Joseph A. Sommer:

Yes, Your Honor, it is.

Although, it has not been taken.

Felix Frankfurter:

And you have been — consist a different case or rather you would have a different case if the federal agent had turned the physical — possibly that the physical thing in — in dealing, the reading over to a state officer and you were to try to enjoin the state officer from using it.

Joseph A. Sommer:

Yes, Your Honor.

Felix Frankfurter:

That is a very different case?

Joseph A. Sommer:

Very different.

Stanley Reed:

Is it one of these federal officers (Inaudible)

Joseph A. Sommer:

Would we ask?

Stanley Reed:

Would you (Inaudible) to the federal officer concerning the original into the state officer?

Joseph A. Sommer:

If he had done so, Your Honor, I think he could be if he did it knowingly and contemptuously.

There would have to be a show cause order and he might say that I was advised by the United States attorney it was all right.

But if he did it deliberately in defiance to the Court, of course, I think he could be held in contempt because he violated the suppression.

Or —

Stanley Reed:

After you get this — after you were successful in having an injunction against him?

Joseph A. Sommer:

That would be true.

After we had the injunction against him then —

Stanley Reed:

But only after — what would be done if a day before you brought this action?

Joseph A. Sommer:

We are and part of our relief here is seeking to have him — rather to have a show cause order why he should not be at this time because the evidence was suppressed at the time he went and testified about in the State.

Stanley Reed:

I understand the suppressed but he hadn’t been ordered not to give any information to the State.

Joseph A. Sommer:

Well —

Stanley Reed:

At the time you filed this motion.

Joseph A. Sommer:

Not specifically, Your Honor.

Felix Frankfurter:

Well, we haven’t got that case here, have we?

We haven’t had a case of contempt or an attachment for contempt against an officer who had turned over the guilty thing before you move against him.

We haven’t got that case, have we?

Joseph A. Sommer:

Not turning over any physical evidence?

No, Your Honor.

Felix Frankfurter:

We haven’t got — we haven’t got any — you haven’t got a case of either the officer having turned over the evidence, the real evidence so-called, or how he testified and being hailed for contempt.

We haven’t got that?

Joseph A. Sommer:

No, that case.

Felix Frankfurter:

That’s a very different case?

Joseph A. Sommer:

Yes, Your Honor.

Felix Frankfurter:

But we haven’t even got the case of an agent with knowledge that you were about to go into federal court concerning that.

Joseph A. Sommer:

Well, that — that I think we do have, Your Honor.

Felix Frankfurter:

What?

Joseph A. Sommer:

I believe, we do have that and that’s why we asked for an order to show cause.

Felix Frankfurter:

Wasn’t having — actually turned it over.

We haven’t got that case?

Joseph A. Sommer:

No.

Not the actual — turned it over.

Felix Frankfurter:

All right.

I’m saying we haven’t got a case where with knowledge that you are about to move to enjoin the turning over, he turned it over.

We haven’t got that?

Joseph A. Sommer:

Not that one.

Felix Frankfurter:

All right.

We got a very simple case of — of the suppression order by the federal authority and an endeavor on your part if you could give it to effectuate that for not having gone across the street with the justice of the peace, that’s the case?

Joseph A. Sommer:

Yes, Your Honor.

Stanley Reed:

And in considering that, you have to consider all the circumstances of that — of the development of this case by the federal officer and as to whether he has authority or has the right to give the information that he unlawfully obtained to the state authorities?

Joseph A. Sommer:

Yes, Your Honor.

That’s what we have to pass here.

Stanley Reed:

And what — what you say is this, wasn’t that Weeks case that set that we’re going to keep this from happening because it interfered with the progress of the Fourth Amendment?

Joseph A. Sommer:

Yes, Your Honor.

Joseph A. Sommer:

I’m coming to the constitutional argument immediately.

In addition to the — what I said as the inherent part and the obligation of the Court to control the abuse of its own process and to place parties in status quo.

In addition to that, I believe that the Fourth Amendment requires that the Federal Government in this case grant the relief which is asked for by the petitioner.

First of all, I said that in the view of the petitioner, the Fourth Amendment includes the remedy of suppression and of course in case that there’s a return at bar if it’s not contraband then it return also.

The Weeks doctrine which was the — I’ve been preceded only by the Boyd case, was broadly stated as the protection of the Fourth — that if the fruit could be used against someone who was a victim of one of these searches by the Federal Government, then the protection of the Fourth Amendment declaring his right to be secure against such searches and seizure is of no value.

And so far as those vast place are concerned, it might as well be stricken from the Constitution.

Now, that statement which was made in reference to a — the use of the evidence in federal court certainly is applicable to state court because as far as this victim is concerned, if the Federal Government is free to search his home without a proper warrant and then give it to the State, and have him prosecuted, as far as he is concerned, the Constitution in that given case and that is this particular case is of no value.

It doesn’t help him when I held it in a state court and he has been the victim of the Federal Government’s action.

Now, the Weeks case, of course, dealt specifically with a federal — it was a federal prosecution.

But the principle involved that a victim ought to be place in status quo and he ought not to be in a worse situation by reason of the action of the Federal Government, that principle is applicable when there is a state prosecution as well as when there’s a federal prosecution.

The rationale is of course put the party where you found them before you violated his rights.

Now, that doesn’t mean just put him where you found him so far as a federal prosecution is concerned, it means put him where you found him and so far as liability for damage is concerned, and to illustrate that there is the Boyd case.

In the Boyd case which preceded the Weeks case, there was an attempt to forfeit certain property, not the application of a final penalty but they were trying to forfeit certain property which was supposed to brought — been brought to customs illegally.

They subpoenaed him to produce — to produce certain papers and by the use of these papers they succeeded in forfeiting the property.

So that the case there did not involve a criminal case at all and in such case, the Court held that the action in subpoenaing these documents and allowing him to be subpoenaed was wrong and contrary to the Fourth Amendment of the Constitution.

So it has been applied not only in federal prosecutions but in federal civil cases.

There are a number of other cases in the Federal Circuit Courts which were cited by the petitioner, which also hold that the Federal Government may not base a civil liability on the — on property or evidence which it should not have seized and which was seized contrary to the Fourth Amendment.

So I say the application, this has been applied not solely in criminal cases but the Federal Government has been prevented from getting any benefit and the victim has been, every time the case has come before the Court, placed in status quo.

In this particular case, the only way to placed this victim in status quo is to treat that evidence as if it did not exist, to freeze it, to obliterate it in the hands of the Federal Government and not to allow him to be prejudiced by the action of the Federal Government.

There is a —

(Inaudible)

Joseph A. Sommer:

If the State — if the State — well, of course the — say in New Mexico —

(Inaudible)

Joseph A. Sommer:

I did not understand Your Honor’s question.

(Inaudible)

Joseph A. Sommer:

That is correct, Your Honor.

The question of whether or not it did receive control of the property again, the State could conduct an illegal search and use it.

It was raised in the Wolf case but that’s not the case here, because he never got possession of the property again.

In that case, he would be getting it the same as if there had never been a federal search.

The federal search would be irrelevant to that — that situation.

Felix Frankfurter:

Well, the State — the State couldn’t get hold of the property except to get out of the — it should never have been seized the way it was.

Joseph A. Sommer:

Correct, Your Honor.

Felix Frankfurter:

So that’s merely another way of saying, can a federal official violate the constitutional provision as this was for the benefit of the State?

Joseph A. Sommer:

I agree with Your Honor’s statement.

The case in Silverthorne, Mr. Justice Holmes — I had a situation where they were not directly using it to prosecute.

I mean it was not involved in a criminal prosecution.

It was involved in a — it was an attempt to subpoena certain papers of a corporation.

And the corporation, of course, could not have pleaded the Fifth Amendment.

So, it was not self-incrimination that was involved.

A — illegal search had been made in the corporation’s premises and the Federal Government had been ordered to turn back the property.

But when they had made the illegal search, they made copies and they obtained certain knowledge.

And you — based on the knowledge that they have obtained, they then issued a subpoena to the corporation, demanding that the corporation turn over the very documents which had been illegally seized in the first place of the term.

It was an indirect way and it was a direct way of using the knowledge they obtained but it was an indirect way of violating the Fourth Amendment.

And this Court struck down the acts of the Federal Government and Mr. Justice Holmes, in that case, said specifically that it was not just the use in court of the evidence that had been illegally seized, it was the use of the evidence at all.

He said the essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.

Now, the Federal Government in this case is saying, “Well, we don’t have certain rights.

Admittedly, we don’t the right to use it ourselves.

But we do have some rights.

We had a right to turn it over to somebody else to use.”

It’s like a thief who’s been caught with something and says, “I can’t keep this but I can give to somebody else to keep.”

There should be no rights attached to something which should not have been done in the first place and was done contrary to the Fourth Amendment of the Constitution.

In United States versus Wallace & Tiernan Company, again, the question was the scope of one of these suppression orders.

There had been a return of certain property to a defendant in the criminal case because the indictment had been bad.

And at that time it was returned, the order — as a matter, there was a return to property and there was an order return.

Then there was a civil case instituted and there was attempt to get the same evidence which had been returned.

And the Court, this Court was there called upon to consider whether or not that original order, which had ordered the property returned, was extended beyond that particular proceeding.

But it was conceded that it could extend beyond the proceeding and the only question in Wallace versus Tiernan was whether or not it had, had that effect and whether it was intended to have that effect.

But the — the case holds and the holding of the case is that it did not.

But the mere fact that this Court had to consider whether you could have what they termed a general order of outlawry against the particular piece of evidence, that was the question which was considered and concededly that could have been the case.

So that these orders are broader than merely applying to a pending criminal case, that is an order of suppression and the power of the Court under the Constitution is to put the victim in the status quo.

Joseph A. Sommer:

Another face of suppression cases and return of illegally seized property is the deterrent to federal officials to violate — not to violate individual’s rights under the Fourth Amendment.

And that was pointed out in the Wolf case in distinguishing the Wolf case, we’re taking the Wolf case out of the Weeks’ doctrine.

In the Wolf case, the — the question was simply whether or not a state which had illegally seized certain property could use that property to get a state conviction and — and the question was involved under the Fourteenth Amendment.

And the precise question is whether the Fourteenth Amendment itself demanded the remedy of suppression in the State or whether the states were free to adopt their own remedies, generally a suit against the officer, they are free to adopt their own remedies to enforce the Fourteenth Amendment.

This Court held that it did, but in so holding, it differentiated the — the remedy which is available against the State Government and the remedy which is available against the Federal Government.

I believe the language that was used in that case was in differentiating the two and the sanctions that are necessary to keep the Federal Government in line under the Fourth Amendment were — this was the language that was used at page 32 and 33 of that opinion, “The public opinion of the community can far more effectively be exerted against oppressive conduct on the part of a police directly responsible to the community itself.

Then local opinions sporadically aroused be brought to bear upon remote authority, pervasively exerted throughout the country.”

The Weeks case established that the only effective sanction for preventing the Federal Government from violating one’s rights against search and seizure was to suppress the evidence, to treat it as if it did not exist, and that is precisely the point that’s involved here.

The question is what remedy shall be applied against the Federal Government?

If this Court were to say that the Federal Government is to free — is free to use this, to obtain a state prosecution, then that remedy would certainly be weakened or — or considerably lessened.

That is particularly true because of the many crimes today which have both state and federal faces, including narcotics, income tax evasion, kidnapping and a whole catalog of crimes where the police cooperate closely.

If the federal agents knew that they could — at will, going to someone’s house and if per chance, he might raise the — made a motion to suppress in a federal court on a federal crime and it was thrown out, it could be confident that despite his illegal action that the evidence could still be used in state court and that’s precisely what has been done here.

And if the agents of the Federal Government knew that regardless of their action, when they have a crime which has both the state and federal aspect, the man is going to be punished.

To that extent, the sanctions that are attached to the Fourth Amendment are considerably, and I say very much, weakened.

And I submit that the rationale of the Weeks case and also of the Wolf case is certainly sufficient to embrace the injunction against federal officials to —

Stanley Reed:

What —

Joseph A. Sommer:

— to stop them from testifying.

Stanley Reed:

What is the authority that we have to enter such an order like this or that the federal courts have?

The supervision of the proper conduct of federal judicial trials?

Joseph A. Sommer:

No, Your Honor, that is not the authority claim.

You’re speaking of the McNabb rule?

Stanley Reed:

I have that in mind.

Joseph A. Sommer:

No, Your Honor.

I do not — we are not — the McNabb rule is not a constitutional rule.

And in view of the petitioner, this is —

Stanley Reed:

Well, this —

Joseph A. Sommer:

— constitutional.

Stanley Reed:

Constitutional in the sense of protecting the Constitution?

Joseph A. Sommer:

Yes, Your Honor.

And in the sense that I said earlier that the — an inherent part of the Fourth Amendment is the remedy that goes with it of suppression.

Joseph A. Sommer:

If that is true, then I think it applies to this case.

Stanley Reed:

This is not a supervision of the conduct of a judiciary?

Joseph A. Sommer:

No, Your Honor.

Not at all, because presumably, the McNabb rule could be changed —

Stanley Reed:

The section of the — of a constitutional provision against unreasonable searches and seizures?

Joseph A. Sommer:

Yes, Your Honor.

Stanley Reed:

And the disclosure of evidence in those cases which wouldn’t be applicable in a federal or state case.

Joseph A. Sommer:

No.

The — the remedy here is — is in vindication of the Fourth Amendment, not the Fourteenth.

Stanley Reed:

Certainly.

But what I’m trying to find is whether or not this — this is proceeding a — merely as a supervision of federal courts or not?

Or whether — I don’t just see how you get the constitutional question in here since the — the Federal Constitution would not be violated by the introduction by a — of a state court of evidence improperly obtained at least we haven’t so held.

Joseph A. Sommer:

Well, that point, the point of whether a state court can use evidence which is illegally obtained, assuming this case came up to a state court and that were before this Court, the argument and — which is supported by authority in our brief is that the state courts, equally with the federal courts, are obliged to enforce federal rights.

I’m not talking about the Fourteenth Amendment.

I’m talking about all federal rights in the Constitution, since the Constitution is the supreme of all the land and justice obliged — justice binding on them as it is on the federal court.

And this — the State of Missouri, the State of Wyoming, the State of Kentucky, and the State of Tennessee have so held —

Stanley Reed:

Well, I — I didn’t contend to bring that up because I think the Wolf case at least bears on that which is to whether the evidence improperly obtained may be used in the state court.

But what I’m trying to understand is just exactly what authority you depend to apply, to authorize the federal courts to enjoin this proceeding?

Because I understand that while this explosion, because I understand your statement it is that since it violated the Federal Constitution to search, that therefore they should not be allowed to obtain any benefit.

Joseph A. Sommer:

That is correct.

Now, there’s a part of the — the part which is sought to be exercised that petitioner is seeking to have the Federal District Court exercise is an equity part of the Court.

It has been exercised ever since the Week case every time a — every time the case — a case of illegal search and seizures come up.

The Federal Government has been told to return the property if that’s as far to suppress it, and it’s a general equitable part of the Court which is being exercised and well-established.

And it’s not necessary in such case to show irreparable harm.

A person who’s been — who has — had his rights violated simply goes in and shows the violation of the right, and he is entitled the return of his property but not contraband.

If it is contraband, he’s entitled to suppression.

The Government has treated rather fully in its brief the question of whether or not this is a proper form to raise the right.

Now, I submit that the authorities which is cited by the — by the Government are not on point as to whether or not this is the proper place.

First of all, the — there is no state law which is here involved at all.

We’re not construing — we’re not construing a federal — a federal — I mean a state criminal law, we don’t depend in anyway upon the construction by the State.

Joseph A. Sommer:

This is precisely comparable to some of the lake segregation cases which have come up to this Court.

Some have come up through the federal courts.

For example, the latest one, Brown versus Kansas, I believe it was, was — arose in a federal court when there was an action to enjoin state officials.

The Texas case came up through the — to the state courts, but there is no reason why the federal court in that case couldn’t consider the violation of federal rights and the same thing is true in this.

The authorities which are cited by the Government as — as dictating an opposite result or first of all — or one of them is Douglas versus City — the City of Jeannette.

There, there was a threatened state prosecution and the construction of the state law was necessary, going to be involved in the federal courts granting the relief, and of course, it was denied in that case.

In Watson versus Buck, which was a Florida case, they — there was involved the construction of a very complicated copyright law in Florida and a law which — for bad certain combinations in the state court in enjoining the law which had never even been construed, I mean the federal court in enjoining the enforcement of such a law was taking upon itself to give a construction to the statute which the state courts have not given, and which might be rendered nugatory if the state court didn’t agree with them on the construction of the statute.

Besides that, they were passing on points which were — they were passing on a general application of the law when all the specific situations under which it might arise were not before them.

And for that reason, this Court said it was improper to interfere directly as they did by an injunction against state officials in the — in the enforcement of that copyright law.

In — in Beal versus Missouri Pacific which is cited by the Government, again we weren’t concerned with a railroad law and its constitutionality.

It had not been construed by the highest court of the State, and the individual — the railroad company in that case sought in an injunction in advance of construction by the State.

The same thing is true of Railroad Commission versus Pullman Company.

In Stefanelli versus Minard, which is cited by the Government as controlling this case, the circumstances were entirely different.

In Stefanelli, the attempt was made to directly interfere in state proceedings by enjoining the state officials.

The heavy hand of the federal court would have gone out and interfere with their activities, rather than allow the case, as this Court held it should, to come up to the state court.

But that involved a direct interference and this Court said that that would be an active intrusion into something which was properly a matter of state concern for its instance, and it again denied the relief.

This case —

Directly, it would do the same thing, wouldn’t it?

Joseph A. Sommer:

He would have that effect, Your Honor, but it would have — no more have that effect in — if I may give an example in the Weeks case.

In the Weeks case, the marshal illegally seized certain property and the federal court ordered him to give the property back to the individual from whom he seized it.

Now, it’s true that if the state court wanted that very evidence and they had come in and said, “Let us have that evidence rather than give it back.”

That they wouldn’t have gotten the evidence back, and that would’ve to that extent have hampered their proceedings.

But I don’t think that the Weeks case would be any different simply because the State wanted the evidence.

I don’t think the federal court should, under the Constitution, refuse in such a situation to give it back to the — the wronged individual simply because the State wants it.

It’s true, it does have the effect of hampering their proceedings because they can’t get a hold of the evidence.

That’s true in every return case in which this Court passes on, the State wanted to get the evidence by reason of the fact it’s returned to the individual, they’re not going to get it, and to that extent they’re — they are hampered.

But that only means that the vindication of the — of the individual right is not hampered simply by rates — a State’s right to prosecute.

In conclusion, I do not believe that the question is a forum, which has been raised, is at all appropriate because the — the question which this Court will consider would be no different if it came up through a half a dozen other state courts.

It’s wholly a federal question on which this Court should pass.

And it’s not something that requires a State or the views of the State in anyway, because we’re talking about the Fourth Amendment, we’re talking about remedies against the — against the Federal Government, we’re talking about process of the federal court.

Joseph A. Sommer:

And the federal court certainly ought to be in position to and should be responsible for its own process in deciding when its own process violates the — the Fourth Amendment to the Constitution.

So, I submit that this is a proper place to raise a point.

Even though it might be true, it could also be raised in the state court.

There’s a question as to whether or not we must show irreparable harm in order to have a suppression.

There’s no more irreparable harm ought to be shown in — in this case and in every suppression case.

And as the Court knows in every suppression case, where you win in the federal court, it’s unnecessary to show a pending prosecution.

All that it’s necessary to show is that your rights have been violated under the Fourth Amendment, your property is taken, and you’re entitled the return of it without any showing of irreparable harm.

If this is an exception to the established equity doctrine, it is an established exception.

And in every case of suppression that is all that’s necessary in the point that it must — there must be irreparable harm.

Otherwise, if you can’t have your property back, you’ve got to get a trial.

That point is over — that point is not substantial in view of all the federal cases which have not shown irreparable federal harm — irreparable harm.

Felix Frankfurter:

Why is there irreparable on the assumption that — the assumption that other arguments are irrelevant, why didn’t irreparable harm not to have new evidence which may well be faith of the prosecution, faith against the favor or prosecution.

If that evidence should be used, why is it not irreparable harm?

You can’t put it in dollars in a sense but you can put it in the irreparability.

Why isn’t irreparable?

Joseph A. Sommer:

I — I do not argue it is not, Your Honor.

I say it’s simply —

Felix Frankfurter:

But since I — (Inaudible) that’s your argument.

Joseph A. Sommer:

I say, we —

Felix Frankfurter:

You said it’s an exception to the rule requiring for equitable action of the — to show the irreparable harm would be the clear — clearest kind of an object, irreparable harm.

Joseph A. Sommer:

Well, the Government argues and they cite in support of that, I believe it did disperse this Jeannette case, which involved a direct interference with state officials and there it was said that that was not irreparable harm, because you were going to be put to a state prosecution.

I think that’s the — the point of which the Government relies to show there — that irreparable harm must be shown, and I say that does not have to be shown in suppression cases and never has been.

Felix Frankfurter:

I asked whether irreparable harm means a vast amount of money or the destruction of the picture —

Joseph A. Sommer:

No, Your Honor.

Felix Frankfurter:

I believe that they’re irreparable harm.

Joseph A. Sommer:

No, Your Honor.

Felix Frankfurter:

I should think the introduction of that (Inaudible) in jail, but which shouldn’t have be allowed to be introduced seems to be a fair case of irreparable harm.

Joseph A. Sommer:

Accordingly, the petitioner submits that the relief prayed for should have been granted, and that the judgment of the lower court and the Court of Appeals should be reversed.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the Court.

Beatrice Rosenberg:

I think it will perhaps clarify the issues if I stated the outset that the Government in this case does not contest the jurisdiction of the federal court to act since it was a federal search by a federal officer.

We think, Mr. Justice Reed, the case of (Inaudible) which said that you could bring an action for damages where you claim the violation of a federal right by a federal officer carries over as to be conflict towards jurisdictional purposes, that if there is jurisdiction to take an action for damages, there was jurisdiction to consider an action for an injunction.

What we do say in this case is that the relief here sought is neither authorized nor required by Rule 41 (e) of the Rules of the Criminal Procedure because those are rules for the Federal District Court, and therefore, are limited in their effect to the Federal District Court.

They’re not a general Act of Congress or general Constitution, implemented on the constitutional requirement for all national purposes.

But we concede that a complaint in equity could have been brought, and we’re not making an issue of the fact that this was done informally rather done by a form of complaint in equity.

But whenever any equity question is brought before a federal court, there arises the problem not conceding the power as a matter of equity should the Court exercise that power.

And in that connection, it seems to me, one of the general principles of hornbook law is that a federal court of equity exercises its power with due regard to the proper administration of state law.

Now, I don’t think that because this is in full an action against the federal officer, one can ignore the fact that it has a very direct and very serious impact and in fact prevent the stay from prosecuting for a state crime.

In the very fact that in this case the State held up, pending — the decision of this Court shows that what happened here has a very direct impact on State Constitution for a state crime.

And I don’t think it can — this case can be disposed of, or that the problem at the court of equity should be disposed of on the narrow ground that this petitioner came in before the property had even been turned over to — had been turned over to the State, but it couldn’t do anything if the property had been already turned over.

That does not seem to us a very desirable result in determining whether your equity power to insist in the sense upon array between the two jurisdiction.

Furthermore, I want to point out that what the Federal Government has already done, has already had an impact on the State which it makes it impossible to just say, “Well, let’s act as though this search had never occurred.”

The property you’re taking is contraband, and as such under Rule 41 (e), the Court had no authority to return to petitioner.

Now, that hadn’t been returned.

This is marihuana.

This is a property which the State could have reached through its own resources, through a valid warrant of his own, presumably without relying at all upon anything discovered by the Federal Government or might have.

But by virtue of the fact that a federal officer made a mistake in his warrant, the fact remains that this property has been put entirely out of the reach of the State by state process.

And the State gets it and can get it if at all, only because the Federal Government in the interest of committee having its hands on this property turns its — is willing to turn it over to the State.

Just as when the Federal Government gets a prisoner, and the State wants — and the Federal Government turns the prisoner over.

But the fact is that the Federal Government has already done something which has already interfered with state process and the state prosecution with state crime.

So that the question comes down essentially to one of general policy, how far is the federal rule of suppression going to be extended?

The Court can extend it as far as it was asked here, but the question is, should it?

And in that connection, we think there are two aspects of the problem.

There is one, should the Court extend the rule of suppression meant for?

And the other question is assuming that it should, should it do so now before the State of New Mexico, which is in a very real sense, the adverse party in interest here, before the New — State of New Mexico has had a chance to pass on this problem for it so and before the State can defend its own decision before the Court —

Felix Frankfurter:

Has it then (Inaudible) of New Mexico come in either below or here?

Beatrice Rosenberg:

No, Your Honor.

Felix Frankfurter:

The first that State of New Mexico may have the benefit of the result of this proposed legislation?

Beatrice Rosenberg:

No, they have not come in.

But I assume by virtue of the fact that the complaint was filed in the state court that the State had agreed to go ahead with the prosecution.

Beatrice Rosenberg:

It’s in this field that narcotics — particularly this is the one area where this is most true, as I understand it.

There is a fairly close cooperation between the State and the Federal Government.

It’s an area in which the interest — there aren’t as many narcotics agent as the problem requires both State and Federal Government have a rare — very real interest in suppressing this traffic so that cases are interchanged frequently for considerations that have nothing to do with the validity of search warrant.

That is if a person is for some reason particularly important to the local authority, the federal authority is well — hand the case over to him and vice versa.

So that it seems to us, any kind of a rule which would depend on the race as to who gets there first would not be a desirable solution to this problem.

We think, either there ought to be a rule that the fruits of an invalid search are not admissible in the state court, or that — that the federal courts will not — will not decide that matter at all, and the state courts can decide it for themselves.

Now, there is considerable variation among the state courts and their attitude towards this problem.

None on the variation that there is in the Weeks rule itself but even in the State that for themselves adopts the Weeks rule, some states have said they will not receive in evidence the proof of an invalid search.

And some of them have taken the federal approach and say they will think — they — the state officers had no part in the invalid search, they feel free to use the results of a federal research.

But the point is, it seems to us, that this is a matter in which the State has a very real interest to speak.

And therefore, we think that quite aside from the question of what the rule would be that this ought to be a rule which stems from the fact that the federal search ougt to be a federal question, so to speak.

And as such as federal question, it is a question which can be raised in the state court subject to review by this Court.

Now, this Court in Stefanelli against Minard, did say that even though a federal question was involved, it’s true that was a state officer, but the basis was a federal question.

They said the orderly processing is just as the proper recognition of the balance between the independence of state government, requires that the State pass on this federal question first even though in a criminal prosection.

And therefore, that this matter can then later be reviewed and although we admit that there is a different situation here because there is a federal officer involved.

Nevertheless, we think that considering it in relation to its impact on the state government that the same law should be applied, and that the question ought to come here framed in the light of the State determination of why it — whether it chooses to receive the evidence, and if it does choose to receive it, why it chooses to receive it.

Now, all — that determination by the State can make a very real difference, it seems to us, in the problem, with which this Court has to deal.

In the first types of problem, they never arise.

It is true that so far, the State of Mexico has refused to follow the Weeks rule.

But this is an area which is constantly in a state of flak.

Just last April, the Supreme Court of California, overruling a long line of decisions, has decided that for that State and on it’s own, it would adopt the rule of suppression.

Felix Frankfurter:

Have you found any other State of the Senate?

Beatrice Rosenberg:

No, but I have also not found any recent New Mexico decision on the question of suppression.

Felix Frankfurter:

And California has been — had a very sharply divided point on that subject.

That State is selfless, merely in the state of flak.

Beatrice Rosenberg:

Yes, Your Honor.

Felix Frankfurter:

So far as I know, that’s not true of any other State that rejected the Weeks doctrine.

Beatrice Rosenberg:

Nevertheless, it seems to us that in the light of the recent decisions of this Court on the question, in the light of the California example, a State of New Mexico ought at least to have the opportunity to pass for itself on the question of whether it wants to go with what is in newer trend.

Felix Frankfurter:

But that’s a very different problem, Ms. Rosenberg.

Because for myself, it — if New Mexico doesn’t want to go to with what you call the new trend, I see no sign of it, except California, it was a dubious sign because as I’ve said that Court has divided — divided within itself, if California — New Mexico wants to adhere to it doctrine but myself there’s nothing in the Constitution of the United States to bar it.

Felix Frankfurter:

That’s a different question whether California — whether New Mexico having appeared through its rule of evidence, have admitting illegally and from its point of view, it wouldn’t be illegal, illegally procured evidence, conviction should stand, there’s a very different question from what the Federal Government should do about a situation which can serve it.

Beatrice Rosenberg:

Oh, yes, Your Honor.

There — there is no doubt about that.

I process my remarks by saying that it would appear to us desirable if there is going to be a rule, a federal rule which reaches over so for as to have the real practical impact on state prosecution that’s here involved.

It would seem to us desirable that such a rule be a rule that flows from the back of an illegal search rather than from the circumstance of what the Court should got to first.

Now, if this flows from the fact of an illegal federal search, it would still seem to me, that the state court would have — did not accept the evidence.

The — the basis for asking equity jurisdiction in the federal court, now, it seems to me, would be something like this, “We recognize that the State of New Mexico can take this evidence, and that in taking this evidence, there is no federal question under either the Fourth or the Fourteenth Amendment.

And therefore, we have to act — the federal court has to act now just to make sure that the State never gets hold of that.”

Felix Frankfurter:

That isn’t the ground.

The ground with judicial self-respect that this federal court having found that the constitutional invalidity in the action of one of it’s — of an officer of the United States ought not to sit idly by, in due time, that if asked to present that official goal across the street and accomplish the same results which should have just the (Inaudible) constitutional conduct.

Beatrice Rosenberg:

Well, that — I think is the question of policy, Your Honor.

But as against that, I think one does have to consider that you’re not just presenting the federal law of a different going across the street.

Because, as I started saying in the beginning, to the extent that the Federal Government has taken his property, out of the reach of a valid process by the State, by it’s own officers, if the Federal Government hadn’t interfered at this point, a state officer might well with his federal warrant, have been able to prosecute what may well be a major state offense or I don’t know.

But one thing is the fact is that the Federal Government, through a Federal Government’s officer and state, has had the effect of seriously already interfering with state persecutions.

And so, we come to this question of the balance of interest.

There’s no doubt about power but you do have the effect that although it is informed against the federal officer, it’s not against the federal officer acting as a federal officer —

Felix Frankfurter:

But Ms. Rosenberg, we — we in such has ought to be — to know few things and such can have ordinary simple knowledge, and we know that in these cases, officially narcotics issues, the federal officials and the State officials are in close with contradict and intimate collaboration.

Beatrice Rosenberg:

Yes, Your Honor.

Felix Frankfurter:

But there was a determination here to the start this proceeding in the federal court and not in the state court.

I don’t have to have that as a matter of record.

I know enough about that and everybody else seems to follow and this prosecution knows that.

But there is this constant collaboration being assumed and this was decided that the federal official should bring this proceeding in the federal court, and it was brought in violation of the Constitution.

And you didn’t say, “Well, what of it if you go now and go across the street, you look at it there because under New Mexico law, we have the benefit of that which the federal court can allow us.”

Beatrice Rosenberg:

Yes, Your Honor.

But it is perfectly possible that this was a joint enterprise in which it so happens that the federal officer made the search.

(Inaudible)

Beatrice Rosenberg:

Well, no, I’m saying it may have been a case that was developed together, but in which the federal officer got the warrant first, I don’t know this.

But I don’t think the rule can depend upon so narrow a question as to whether in this case, the Federal Government started first that — that whether a State can prosecute for a state crime should depend on the fact that in this particular case, the decision was made to prosecute first in the federal courts.

Whereas, it’s in exactly the same case for some reason, the property had been turned over to the State first and the indictment had first been brought into the state court even though obtained under the same warrant that you could have gone ahead with the state prosecution.

Maybe — it seems to me, a result which the Court would not want to reach on that narrow ground unless compelled to do so.

Felix Frankfurter:

Ms. Rosenberg, this — this case and what was done here must be said in the context of past history, and the records of this Court show that what used to be done is to have the federal officials get the state officials to make the — the unreasonable search and seizure, and that then they could come into the Court indeed as they did until this Court stopped them and said, “Oh, we haven’t done anything to violate the Fourth Amendment, it’s the state officials that have done it and therefore we have a right to use this evidence which the state officials have produced.“

And this Court put an end to that practice and it’s high ground we put an end to this practice in having the federal officials trying to do what they can.

If they don’t succeed in the federal court, send it all to the state courts.

Beatrice Rosenberg:

I suggest also that there’s another fact to be considered in this case, and that is this question of the invalidity of this particular search.

As I read the record, the warrant — the affidavit isn’t there but it seems evident from the order that is in the record.

The basis for the suppression in this case was the fact that this warrant was obtained on information and belief rather than on the basis of the affidavit of the actual informant who had knowledge of that fact.

Now, it’s true we’re in no position to contest the fact before the federal court that’s been held to be an invalid warrant, an insufficient warrant, and the evidence has been declared.

But it doesn’t seem to me to follow with such decency that even though — that we — or on the basis of this particular kind of an error or the kind of a search which is not openly and unquestionably illegal present a State from going ahead just because this warrant is not sufficient in the federal law.

There are states, I found New Mexico — known New Mexico decision, but there are states which consider decisions and affidavits on information and belief it’s the grounds for the information and belief were given.

Oh, it seems again to us that this is a decision first for New Mexico to make.

That if New Mexico decides that for its purposes, this is not an unreasonable search, then the fact of the federal officer got the evidence worth ought not to preclude the State of New Mexico from going ahead with a prosecution for a state offense to the sense — federal officer got there first, that’s a fact, but very often, instead of cooperation sometimes there’s conflict, there are question sometimes.

Federal officer gets a prisoner first, the State warrants him.

These things have to be worked out as the matter of comity.

And I — it doesn’t seem to us that the State ought to be prevented from going ahead unless this Court is willing to go much further and say that when there is an invalid search warrant, that’s the end of the matter for all purposes.

That means that as a matter of federal law, as a matter of federal interpretation of the Fourth Amendment, we don’t think this evidence ought to be available in the state court, whatever the rule is about state officers.

Now, it — it seems to us the rule has to be in a sense either as general as that and not be based on the particular circumstances that developed in a particular case.

Now, as to any such general policy that would be, I think admittedly an extension far beyond the requirement of this — that so far have been attached the rule of suppression.

This Court in the Wolf, in the Irvine case, I think talks about the rule of suppression as they — subsidiary evidentiary and procedural doctrine developed by the federal court.

I think the decisions of this Court from Wolf against Colorado on had made clear that the rule of suppression is not inherent in the Fourth Amendment and not an inescapable consequence of the violation of the Fourth Amendment.

Harold Burton:

Do you concede that the District Court had the power to enjoin the federal officers from using this evidence in the state court?

Beatrice Rosenberg:

Yes, Your Honor.

We concede and that —

Harold Burton:

(Voice Overlap) —

Beatrice Rosenberg:

— it had the power — equity power.

It had jurisdiction as a court of equity.

Harold Burton:

It had the power to do it, but it didn’t do it?

Beatrice Rosenberg:

That right.

Harold Burton:

In its discretion, it didn’t do it?

Beatrice Rosenberg:

That right.

Harold Burton:

And the other side, I take — makes the argument that that’s an abusive discretion.

Beatrice Rosenberg:

Well, that’s right and I’m saying that we don’t think it is that —

Harold Burton:

Well —

Beatrice Rosenberg:

Well, the other side is arguing, as a matter of fact, that this is required by Rule 41.

We think it clearly is not, that Rule 41 is a rule for the Federal District Court that when say evidence shall not be required in any hearing or trial that that mean — that shall not be in any federal hearing or trial.

And we think that the whole — well, the number of decisions of this Court which have said that the rule of suppression is of one method of enforcing Fourth Amendment right, not the complete method, not the only method of enforcing Fourth Amendment right, indicates that this is a rule of policy for the federal court.

And as such, we don’t think it should go so far as to extend over into the state court so as to preclude the states from getting evidence which is evidence of a state court and which, say for the mistake of the federal officer, the State might well have been able to get through its own valid process.

Now, I want to make only one other point and that is that if this — if the Court was going to lay down a general rule of evidence the power of — from the fact that there had been a violation of Fourth Amendment right, then it would seem to me that — that the state court would be bound as a matter of federal — of the — of the Constitution to exclude that evidence.

And if that’s the case, then under the decisions of this Court, like Douglas against the City of Jeannette and Stefanelli against Minard, there’d be no occasion for the act — Court to act now in advance action by the State.

So that if there is going to be a general rule, this action is premature because the State ought to act on it first.

The basis for action now would be the particular circumstances here realizing that if the State got the evidence, they’d be absolutely free to use it and no federal question would be read.

Well, that seems to us an undesirable rule which would make suppression depend or make a general rule of admissibility in state courts depend on the particular race of who got where first.

And that does not seem to us a — a proper method of dealing with this really quite significant question in federal state relationships.

Earl Warren:

Mr. Sommer, did you have something more?

Joseph A. Sommer:

Your Honor, I have nothing more unless there are some questions which have arisen as a result of the Government’s argument.

Earl Warren:

Thank you.