Sibron v. New York – Oral Argument – December 12, 1967

Media for Sibron v. New York

Audio Transcription for Oral Argument – December 11, 1967 in Sibron v. New York

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Earl Warren:

Nelson Sibron, Appellant versus New York.

Mr. Juviler.

Mr. Chief Justice and may it please the Court.

The New York County District Attorney’s office appears as amicus curiae in both the Sibron case number 63 and the Peters number 74.

Time for oral argument has been made available to us from the time allotted to the Sibron case. The interest of amicus as a prosecutor in a major crime infested city is in preserving the constitutionality of the police patrol practices of long standing, which have been codified in the New York stop and frisk statute, the statute that is under attack in both the Sibron and the Peters case.

Whether the question is reached in the Sibron case as Mr. Justice White noted yesterday it must be passed in the Peters case, if it is not reached in the Sibron case and the issues therefore as well as the interests of amicus survive the unusual procedural features of the Sibron case.

We propose to —

Earl Warren:

May I ask you if the Peters case was tried on theory that there was a stop and frisk?

Yeah I believe it was Your Honor from the testimony of the police officer as to his conduct.

Earl Warren:

That was a rationale of the case, was it, not arrest for probable cause?

There actually was no express finding by the hearing court, but on a motion to suppress the District Attorney of Westchester County took the position that this was a lawful application of the stop and frisk statute.

He did not seek to justify the officer’s conduct on the theory of probable cause.

Earl Warren:

And that is your argument —

That is our argument here Your Honor.

Abe Fortas:

Do you defer with the District Attorney for Brooklyn or whatever it is, Kings County with respect to the confession of error in the Sibron case?

No Mr. Justice we agree with that concession of error.

Abe Fortas:

And on what basis?

On the basis that the officer lacked reasonable grounds to suspect that the defendant Sibron was behaving in a suspicious manner.

Abe Fortas:

You also do you – what position do you take as to whether the actual frisk or search whichever it maybe as within the scope of statute constitutionally considered?

We join with Mr. Siegel in contending that this officer was not really applying the stop and frisk statute at all as was clear from his testimony and that the stop and frisk statute did not apply to the conduct.

Abe Fortas:

That’s not quite an answer.

You know the facts in Sibron.

Yes.

Abe Fortas:

What the officer did and my question to you, your capacity as representing New York County, is whether you consider that, the action of the officer there in that case in Sibron as being within the scope of the stop and, so called stop and frisk statute constitutionally considered?

We do not.

Abe Fortas:

In other words then there are two reasons here for the confession of error.

One is a lack of reasonable or the basis for reasonable suspicion and the other that this was not what that officer actually did, that is to say reaching into the man’s pocket, was not what permitted by the stop and frisk statute in terms of the constitutional limitations from the application of that statute.

That is exactly our position.

Byron R. White:

So even if there is reasonable suspicion to within the meaning of the stop and frisk statute, what the officer did it went beyond — what you think the officer could constitutionally do under the stop and frisk statute?

Yes that is our position Mr. Justice.

Byron R. White:

So that he should not have — the kind of search that he made exceed constitutional limit?

That’s correct.

Thurgood Marshall:

Well on the Peters case —

Which is – may I — excuse me.

Thurgood Marshall:

Does the New York stop-and-frisk law apply when a New York officer is living in White Plains and he stops a man in White Plains?

I would have thought not Mr. Justice Marshall until the Court of Appeals’ decision in the Peters case.

Thurgood Marshall:

Well do you think it does now?

We would have to construe the Peters case that way, however.

Thurgood Marshall:

— with Albany?

I think —

Thurgood Marshall:

Rochester, Syracuse, you mean the police officer can go any place in the state and stop somebody and frisk him?

I think that as a practical matter that is not a real problem in New York State.

Thurgood Marshall:

Well don’t you think Peters is a probable cause.

Don’t you think a man has a probable cause if somebody is tinkering with his door, trying to break-in that he has the right to go out and see what’s going on?

He undoubtedly did have a right except that — we feel that probable cause did not attach until at the very least he felt the hard object in Peter’s pocket.

Thurgood Marshall:

You mean if he hears somebody tinkering with his door, he looks for people, and he sees a man there, that he hasn’t got probable cause to stop it?

He had probable cause to stop him not–

Thurgood Marshall:

Question him?

Question him and detain him if necessary to determine what the purpose of this suspect was.

Thurgood Marshall:

Well isn’t that what happened there?

That’s exactly what happened.

Thurgood Marshall:

Well how do we get to stop and frisk now, he had probable cause?

Because I think probable cause has been used in two senses.

In one sense, its probable cause to believe that a specific person has committed a crime and that is the standard, which justifies actually taking the suspect to the station house and booking him for burglary.

I think perhaps in that sense there was no probable cause at that moment.

However probable cause as Mr. Justice White pointed out in the Camara case in the last term in this Court does not always mean probable cause to believe that a particular person has committed a crime.

Byron R. White:

You just mean – don’t you mean he just had – he had reasonable suspicion?

He had reasonable suspicion that what he did was reasonable.

Byron R. White:

He had a reasonable suspicion to stop him, to stop him and detain him momentarily and to frisk him?

Precisely, and if the label of probable cause to detain is placed on this rather than reasonable suspicion, we would quite agree that under either label, what the officer did was reasonable, it was quite reasonable.

Thurgood Marshall:

MBut if there is probable cause, they don’t get to the stop and frisk statute, is that correct?

Only if the facts fail to show probable cause for an actual arrest and booking of the suspect as the appellants urge in these cases.

Thurgood Marshall:

You agree that if we think that this was a probable cause case, we are prevented from passing on the constitutionality of stop and frisk statute?

If there was probable cause to believe that Mr. Peters at the time the officer opened his door was attempting a burglary then it would be unnecessary to reach the constitutional question.

Earl Warren:

My understanding to say that the state can rely first on arresting a man for probable cause and if they failed in that that, they can fall back to the stop and frisk law and rely on that because well they didn’t have probable cause they did have reasonable suspicion?

I think that as a general practice Mr. Chief Justice, the officer relies first on the stop and frisk powers and only subsequently on the arrest powers.

There are undoubtedly borderline cases where in a close case, perhaps Peters is such a case the quantum of evidence does not establish probable cause for arrest, probable cause to believe and yet under all of the facts and circumstances what the officer did was reasonable as that term is employed in the Fourth Amendment.

Earl Warren:

Then you have two bites at it.

The first you can try — first you can try a probable cause and if it fails in the constitutional sense, you can then fall back on your stop and frisk law and say well at all events we are entitled to stop and frisk him and justify the arrest?

If the standards of the statute are met.

I think that what Your Honor suggesting is nothing new in the law of Fourth Amendment.

There are cases where an officer will execute a warrant which subsequently proves to have been based on insufficient cause in the officer’s affidavit and yet in the course of the officer’s subsequent investigation and execution of the warrant, he develops in a lawful manner probable cause for arrest.

Now while the principle, impetus historically for that officer’s conduct may have been probable cause, this Court has held — may have in the warrant, this Court has held that if the warrant does not meet the tests of probable cause under the Fourth Amendment, the officer can, as Your Honor suggests, fall back and I see nothing unreasonable about this under the Fourth Amendment, so long as what the officer did was reasonable and fulfills the requirements of the statute.

Abe Fortas:

Well, let’s try your case, I beg your pardon.

Earl Warren:

No problem.

Abe Fortas:

Let’s take a case, if you will, in which the officer has probable cause but he has plenty of time and opportunity to obtain a warrant but without obtaining a warrant acting solely on the basis of probable cause, he arrests the person.

Is that arrest valid as a matter of constitutional law?

Under the decisions of this Court it is, unless the officer has deliberately delayed the arrest for some unworthy purpose such as waiting for the suspect to get to his home, so that he can use the arrest as an excuse for searching the home, incident to arrest.

Earl Warren:

May I ask you this?

If in this Sibron case the officer had reasonable suspicion that this man was carrying narcotics, not probable cause for doing so and had proceeded as he proceeded here, will the case be relieved of error?

I think not because based on the findings of the hearing court as expressed in its colloquy with counsel, the court found that the officer’s purpose in reaching for Mr. Sibron’s pocket was not self-protection, but rather to seize an object that perhaps the suspect was going to throw to the ground and we do not feel that such an action is reasonable.

However, I think there perhaps could be unusual circumstances not raised in any of the cases presently before the Court where a sudden movement by a person detained in a suspicious circumstances, a man who’s been observed on tenement roof as the case we cited our brief from the New York files, who was moving from roof to roof late at night and the officer goes up to the tenement roof and stops him and suddenly the man makes an action towards breast pocket, I think there it would be reasonable to eschew in the particular case, the external padding to prevent the additional danger to the officer, but that is not in any of the cases presently before the Court.

Earl Warren:

Would you distinguish the Sibron case from the stop-and-frisk law because in Sibron case, they not only said they were looking for weapons but they actually took other things from him and convicted him on that score?

They took them Mr. Chief Justice in a manner that was not reasonable.

We do not feel that only weapons maybe admitted in evidence if the officer’s maneuver that discovers something other than a weapon was legitimately and reasonably a frisk for a weapon.

But the Sibron case has even further problems than that.

The Sibron case, I think it’s clear, does not square with the Court of Appeals’ interpretation of the stop-and-frisk statute as expressed in its actual written-in opinions, and we propose to address ourselves to the actual degree of intrusion that the stop-and-frisk statute does permit and to compare that to the constitutional standards for reasonable searches and seizures.

The first, actually the basic provision in this statute is not the frisk.

It’s an accident of jurisprudence that the cases that have come before the Court this week have all involved discovery of tangible objects.

As the briefs of the National District Attorneys Association makes clear, they have an appendix with sample cases of detention, the average case that have come to the attention of the lower courts and of this Court on petitions for certiorari, are cases where there’s merely a stop, a questioning and a detention and this is really the heart of the stop provision.

The frisk is merely an adjunct to this more essential part of the stop-and-frisk theory which has been codified after long practice in the New York statute.

Earl Warren:

When does the frisk end?

The frisk ends when the officer determines either by this patting — either by this padding that there are no grounds to suspect that there is a weapon, I pat myself here it’s quite obvious that that’s the case or when a potential dangerous weapon such as a gun or a gravity knife, a hard object is felt, the officer then of course in all humanity is entitled to examine internally only that specific region of the suspect’s person.

Now while the statute uses the word “search” it has been narrowly construed in Judge Keating’s opinion in the Peters case to cover only this patting, Your Honors that —

Byron R. White:

What about Taggart?

Excuse me.

Byron R. White:

How about Taggart?

The Taggart case expressly reaffirms the holding of the Peters case without taking time to read the relevant portion —

Byron R. White:

Do you mean that, do you think the New York Court upheld that there must be a preliminary frisk before there’s a search — before even actually reaching to somebody’s pocket there must be a —

Yes, that’s correct Mr. Justice, unless there’s an extraordinary circumstance such as the Court felt existed in the Taggart case.

Now, we may different with the Court of Appeals in specific fact situations as to what the extraordinary circumstances are.

There, there was specific information relating to a specific weapon at a particular part of the suspect’s person.

There was a crowd of children around the suspect.

Now perhaps, it could be argued both way that this is not dangerous enough —

Justice Berannan:

May I ask Mr. Juviler, conceptually for Fourth Amendment purposes, — for the Fourth Amendment issue you would – is it your submission that a frisk is or is not a search?

Yes, it is a search.

Justice Berannan:

It is a search.

In the generics —

Justice Berannan:

May I ask – and then do you also conceptually regard the stop as a seizure the stop and —

Stop and detention is a seizure.

Justice Berannan:

Well then I gather your argument is that — what then occurs both as to the stop and the frisk is right, is reasonable?

It is a seizure that is not unreasonable as that term is used in the Fourth Amendment because the standard —

Justice Berannan:

The seizure that’s not unreasonable and a search that’s not reasonable.

And a search that is not unreasonable.

Justice Berannan:

That’s conceptually your approach?

Precisely because the standards, for reason — for intrusion of particular types that are cognizable under the Fourth Amendment vary from case to case.

This Court has repeatedly made clear that the standards are flexible, depending upon the circumstances of the particular intrusion, the degree of intrusion and it’s the degree of intrusion is proportioned as it is in the stop-frisk-theory to the degree of knowledge that the officer has and this is a reasonable search.

I think the Camara case made that quite clear.

Earl Warren:

But your concept of this statute authorized police as part of the stop and frisk to put a man in the police car and take him to the police station?

Not at all Your Honor.

Earl Warren:

Well isn’t there a case in New York to that affect –

I think –

Earl Warren:

— they on the way to the station, they opened his briefcase and searched it for a weapon or whatever they were looking for?

The (Inaudible) case to which Your Honor refers was decided prior to the passage of the enactment of the stop-and-frisk bill.

The stop-and-frisk statute says that the officer may search the person.

Now that has been, that has been construed by the police department and by the law enforcement agencies which prepared guidelines, interpreting this law, same agencies that sponsored the law that has been construed as not including opening a briefcase or a ladies handbag.

These are items which reasonably can be taken from the suspect during the detention and placed out of reach.

We do not urge that opening those items is necessary and I don’t think that the Court of Appeals would so hold now at least that is unsettled in New York law since the passage of the statute that is before the Court.

Earl Warren:

To what extent meant for — in what manner rather and for how long do you consider a detention would be constitutional statute?

I think that will depend upon the facts of the case.

Now, the Court of Appeals has stated in the Peters case that the detention is for a short and reasonable period.

They have not had occasion to apply that interpretation to specific cases other than the Peter’s case itself, which I think is illustrative of a detention.

We have to be frank.

This is a detention that is reasonable.

The officer caught a suspected burglar on a landing after running after the burglar ran down a flight and half of stairs.

It was reasonable for him to make a brief detention in order to return the suspect to the scene of the suspected crime —

William O. Douglas:

You are arguing the Peters case?

Yes, I am arguing the Peters case because that’s correct Your Honor.

To return Mr. Peters to the scene of the crime, to determine whether indeed the suspicions were correct, whether there had been signs of a break in the apartment opposite, whether the door opposite had forced open.

There are typical cases from actual occurrences in the New York City, which illustrate this.

We cite several in our brief.

The lady whose handbag has been snatched, who tells an officer on the corner that a young man or two young man have run north with a handbag.

The officer sees a young man running two blocks north.

Now he can’t take that young man to the station house and book him for a grand larceny.

He doesn’t have probable cause to arrest and book, but its perfectly reasonable for him to make a brief detention in order enable a quick confrontation between the suspect and the —

Justice Berannan:

They asked the suspect question?

In this instance he could ask questions, I am not sure what purpose —

Justice Berannan:

Without Miranda warning?

The Miranda question — I think the Miranda case, which is written so precisely, left the door open to certain stop-and-frisk situations —

Justice Berannan:

[Voice Overlap], isn’t it?

Yes.

Justice Berannan:

And here I gather you are saying that detention is a custodial detention, isn’t it?

It is a custody, but not necessarily Mr. Justice Brennan a custody for purposes of Miranda, because in the Miranda decision, there was compared or there was an explication of that term in same sentence, the suspect is deprived of his freedom in any significant way.

So that the Miranda case acknowledges that there is some restraint on freedom, which is not sufficiently significant to give rise to the Miranda warning.

Thurgood Marshall:

In Peters didn’t the man have him by the collar?

He had him by the collar, yes.

Thurgood Marshall:

Its’ forced custody.

I think in the Peters case [Laughter] I think in the Peters case where there is a caller and a gun open, it wasn’t clear from the record whether it was pointed, but a gun open, this is a brief detention, yet it’s one which quite reasonably the Miranda warnings now could apply to, although in the Peters case that was not at issue due to the timing of this case.

I don’t think that it would be unreasonable in this extraordinary restraint of freedom to apply the Miranda warning.

Byron R. White:

Could you tell me what it was the law enforcement people have in sustaining this — the right to have what you call this temporary confrontation, which would authorize and enforce the detention for a few moments?

Why is that so much better, produce so much more consequences than just the fact if an officer presence making his presence known, and doing what any officer could do anyway without a statute or without any constitutional problem just walking up to some person asking him a question what are you doing here, without being able to detain him, fellow walked on, that’s the end of it?

What real contribution does the ability to forcibly detain him for a moment, for a few moments?

What additional contribution to that to prevention of crime?

To the actual prevention rather than the apprehension.

Byron R. White:

This is the major justification —

I think that there are some situations where to prevent crime the officer must know or must make reasonable efforts to learn the identity of the suspect.

I think it’s impossible and I think it would be undesirable —

Byron R. White:

But here is standing on the street corner and I suspect you maybe planning some crime and I ask you your name, I can do that without invoking stop-and-frisk and if you tell me I suppose that’s — then I know the name, but if you say none of your business or you can say that and stop-and-frisk —

That’s correct.

Byron R. White:

The courts say that nobody can make you talk about anything.

That’s right to stop and question.

Byron R. White:

And again I ask you what contribution does this, this enforced custody for a few moments make to law enforcement or crime prevention?

In those instances there are with the — the detention could only be for the length of time to learn the suspect’s purpose of being there.

I think that, that alone is limited and as Mr. Justice Marshall noted yesterday, when an officer tells someone to stop and ask them what he is doing and holds him for that period, there is some degree of official authority that is conveyed to the suspect that he must remain there.

I think the prevention is that the officer makes his presence known specifically addressed to that suspect and if he learns his identity, I think he is prevented any (Inaudible) crime in that neighborhood at least in that area.

Byron R. White:

Why does he need some coercive power to help him do this?

Why does he need any new constitutional rule beyond what they’re going to — what already exists?

There is no rules as far as I know against a policeman asking somebody on the a street what his name, what you are doing on the street, and of — if the fellow now just wants to walk on, he just walks on, the policeman has no power to hold him at least — so I don’t — I just want to know what extra contribution stopped him, stop-and-frisk authority contributes?

There are situations of that nature where the suspect has to be stopped Mr. Justice White —

Byron R. White:

What are those situations?

We cite a case in our brief that occurred in New York where two men were running out of a bar and they were following a woman who was running out.

Now there may have been a crime here, there may have been an assault, so it’s late at night.

The officer had to touch, he had to detain those two men to find out what they were doing.

In other situations where the man is right on the spot, the only —

Byron R. White:

You think you needed to stop-and-frisk law to do that —

No as a matter of Mr. Justice White —

Byron R. White:

That is really responsible.

I don’t think we need to stop-and-frisk statute in the strict sense in New York for to preserve this police comment under the Fourth Amendment.

Byron R. White:

What is the constitutional authority do you need?

An authority to exercise some restraint.

Byron R. White:

What do you need the restrain for?

To, in the one sense to detain a suspect for the length of time —

Byron R. White:

Well, I know that’s true, that’s just repeating —

In other instances.

Byron R. White:

Why do you want to detain him for?

In other instances to enable a confrontation or a clarification of the situation that has arisen and there are many ambiguous situations where a —

Byron R. White:

[Inaudible] gentleman doesn’t need to talk to you or doesn’t need to tell you a word and even under stop-and-frisk law?

Well it has been argued by — in New York that even to stop someone and keep him there while you are asking what he is doing creates this compulsion which —

Byron R. White:

Well, why do you have to keep him there, why do you need to keep him there?

In most instances — in many instances you would not beyond the initial just asking his identity and asking what he is doing, but sometimes the suspect may not —

Byron R. White:

It is a danger that courts will strike down without some — just a policeman walking up to anyone on the street and say what is your name, do you think?

No and I think Mr. Justice White if the suspect is in a situation which appears to a potential mugging.

Byron R. White:

Nothing is going to happen probably as along the policeman is there?

Well, that’s the problem.

I don’t think we can have policeman on the corner of every street in a high crime area for 24 hours a day and I don’t think that would be desirable.

Byron R. White:

I agree, but at least the fellow knows when the policeman is there, the policeman has got his eye on him?

Yes when I think of the officer —

Byron R. White:

And if the fellow refuses to answer a question with or without the stop-and-frisk law, there is nothing the policeman can do about it?

No, not to make him answer.

Byron R. White:

Police is not going to get anymore information, the fellow has —

Unless his, unless the majesty of his badge is sufficient he is not, but at least to enforce that majesty he has got to keep the man where he is if he wishes to leave for the duration of time it takes to ask him what he is doing and I think this is traditional police practice.

Byron R. White:

Well I just don’t — still don’t get the message in terms of what contribution to law enforcement or over and beyond what presently is you really are getting from stop-and-frisk laws and having them validated under the Fourth Amendment?

Well I think that the more serious problem is the detention of purposes of clarification of an ambiguous situation.

For example the woman screaming and a man coming out the front door late at night or —

Byron R. White:

Are you sure that the major contribution that [Inaudible] to find weapons?

It hasn’t been — if that is the purpose it hasn’t conceded in the —

Byron R. White:

It sounds like — in New York last year, didn’t you?

Not through the stop-and-frisk statute.

Byron R. White:

What did — then?

There were 8,000 concealed weapons found in New York City, concealed guns and revolvers which point out the danger to officers in the field, but there is no — these were not found in enforcement of the stop-and-frisk statute, but once we placed an officer —

Byron R. White:

Some of them were, weren’t they?

Unquestionably.

As a matter of fact we have a table in our — in the appendix to our brief showing that some of these were found pursuant to the stop-and-frisk statute.

But once the officer is in a situation where his duty compels him to confront an individual who is suspected of a serious crime, it is our position that it’s reasonable to touch him, to see whether further danger is required?

Justice Berannan:

Mr. Juviler tell me, in New York now that you have the stop-and-frisk law, is the authority of the policeman to stop the ordinary citizen, ask him a question and his name and what he is doing, limited to circumstances where a officer has reasonable suspicion to believe the crime has been committed and he maybe involved.

Is that the only circumstance now and now that you have the statute that the policeman may stop?

I think that the additional factor that the statute makes clear is that the policeman can enforce his ability to stop someone, by power, the official power to detain the suspect there.

Justice Berannan:

But even with the stop-and-frisk, well then an officer may stop me in the street having no reasonable suspicion of anything and ask me my name and what I’m doing.

They do that now that you —

Yes I think so there is no —

Justice Berannan:

Well I certainly don’t read the appendices to your brief as suggesting that with all those really elaborate regulations that at least New York City has set it?

Yes.

Justice Berannan:

Are those what you have in your brief?

Yes.

Justice Berannan:

I have the impression now that that’s the only option police officer has and he has to justify a stop on the basis of factual statements which will amount to reasonable suspicion, am I wrong about that?

Well I think if the officer is going to do more, I think if the —

Justice Berannan:

I just want a simple situation where I’m standing in Times Square and he comes up to me and asks me my name and what I’m doing.

He doesn’t need the statute.

But if you’re walking —

Justice Berannan:

I know that may [Inaudible] anymore to that —

If you are standing —

Justice Berannan:

Does he have to make a —

Not at all.

But if you walking in Times Square and you resemble a suspect of a murder as occurred in the case in Times Square that we cite, the officer has the power under the statute codifying established power actually to stop your movement.

There is a difference I think —

Byron R. White:

And to detain him?

And to detain him for purposes of identification in that case and of course in apprehending Mr. Justice White, in apprehending criminals there is in our theory some prevention that is occurring, although this is not the direct effect, but prevention is not the only job of the patrol, although it is the principal job and I think as far as the detention aspect, the detention aspect perhaps is more successful and useful in actually apprehending people who are in ambiguous circumstances where the crime probably has already occurred.

Earl Warren:

Do you mean that this statute would not apply unless the man was moving?

That’s correct.

It would not be a stop.

Earl Warren:

Well, suppose the police officer was going along taking care of his business late at night and he saw a man crouching behind in an alley behind a telegraph pole or something like that, under suspicious circumstances, would you say that this ordinance didn’t apply to him just because he wasn’t moving?

No, the ordinance, in the statute would apply Mr. Chief Justice, if the officer was required to detain the person beyond just asking —

Earl Warren:

But you said a little while ago that if this was only to stop them and if they were moving —

I misspoke.

That was ill-considered on my talk.

The statute has been construed Mr. Chief Justice now this term stop has been construed as embodied in the Peters case, as embodying stopping someone who is ambulatory or detaining someone where he is by the official power of the policeman.

Earl Warren:

Well let me ask you this.

You know there have been suggestions that when they stop them and frisk them that they can hold them for, well some people say eight hours, some people say four, some reduce it down to 20 minutes in order I suppose to do what you call detaining him in order to clarify the situation.

Now do you believe any such theory is in accordance with the constitution under this statute?

I think it is Your Honor.

Now the statute —

Earl Warren:

How long would you say that they could detain them?

The American Law Institute —

Earl Warren:

I don’t care about The American Law Institute, I know what they say.

What are you contending in this Court, that they have the power —

We are not proposing any specific time limit beyond that which is reasonable.

I think if it gets beyond 20 minutes there has to be a very good reason for the continued detention and in my examination of the cases, a longer detention where this no probable cause to believe is really not necessary for law enforcement.

I think that the ambiguous situations in the great instance can be cleared up as in the cases that we cited in our brief in New York City, in a few minutes.

Now reasonableness under the Fourth Amendment depends on the facts and circumstances of a particular case, just as the standard of an unreasonable delay in arraignment under the Federal Statute is not a minute by minute chronology but something which has to be examined.

We would not — I cannot conceive of any instance where eight hours would be reasonable.

Earl Warren:

Can you conceive any situation where there is less than probable cause to take the suspect to the station and put him in the cellar, in custody?

None whatsoever, that is not authorized by the New York cases and New York law or in our position by the present interpretation of the common law having its —

Earl Warren:

Yes, but your contention is that he can take him right there or can he take him into custody or take him around the city to, say the scene of the crimes?

I think he can only take him and it’s only necessary and proper to take him to the immediate area where the crime has occurred, I accept I can conceive of one instance which is cited in one of the briefs in the appendix to the National District attorney’s brief, where there was a reasonable suspicion that a certain automobile had been engaged in a known burglary and it was seen at the other end of town.

Now the officer on patrol there who received the description saw this car, but he wasn’t present at the burglary, he detained the car and in a matter of a few moments a witness and a police officer from the scene were rushed across town to the scene and they established that this was the car and these were the people engaged in the burglary, that was –

Earl Warren:

Suppose the rush had been the other way?

Suppose they had taken the suspect across the city for people to look at him and so forth?

I think that would be reasonable as in the case of the purse snatch for example where you had a distraught woman whose purse was snatched and she hysterically gave a description to the officer, I think it’s reasonable for the suspect to be brought back to the scene or the woman screaming in the window up above and a man is stopped down here.

I think that, and in the Peters case where the burglary suspect was brought from the fifth floor landing up to the sixth floor, I think this is a very limited type of detention which doesn’t include the handcuffs, the cell bars, the booking and the crowded police station and that is not needed and it’s not authorized by the New York cases or the Court of Appeals cases and the statute in New York.

Earl Warren:

The suspect can be sequestered as well in police car with two or three police officers and he can’t be in the station, can’t he?

Yes I think the problem here is actually one not of the place, but of the degree of force or official coercion that is needed and I think putting someone in the police car its not so much where he is, but that this is a use of a greater degree of force or official restraint than just asking him to remain where he was, where he is while the radio call that he made to see whether the car is stolen, for example.

I think that is the traditional police practice.

I think there is a certain extent Mr. Justice Warren where these cases as in all search and seizure cases under the Fourth Amendment have to be reviewed on a case by case basis deepening on a facts of the particular case and while there are always borderline situations —

Earl Warren:

Even to the extent of abandoning probable cause?

To the extent probable cause is not abandoned Mr. Chief Justice I think that in the established —

Earl Warren:

Just relaxed in the opinion of the police?

In the customary law, in the decisions of every court in the lower courts that have reached this including the Federal courts and in the common law probable cause to believe to book someone and arrest him is not required for a minimal limited detention of the type that is authorized by the New York statute.

Undoubtedly, there will be cases arising where the detention goes beyond those limits as there are cases in every police rule under the Fourth Amendment and I think the courts and this Court are well-equipped to point out to the police the true standards and the proper boundaries as the cases arrive.

Justice Berannan:

Mr. Juviler, may I ask this, under this statute is it contemplated that an officer who stops me on the street may before he says anything, frisk me.

Yes, it is contemplated —

Justice Berannan:

He may just stop me and before he asks my name or anything else, he frisks me?

He could not stop Your Honor but he could stop someone with —

Justice Berannan:

I wonder why he couldn’t?

— reasonably suspected of a serious crime.

Now, if Your Honor, if the officer —

Justice Berannan:

That’s the only time then in the situation where there isn’t —

That’s correct.

Justice Berannan:

— reasonable suspicion he may not frisk, is that –?

Absolutely, the statute is unequivocal in that respect and it has been so construed in the Peters case.

There’s no way to read the statute any other way.

You can’t just go and ask someone’s name who is not under a reasonable suspicion and frisk him, it’s absolutely unauthorized.

Byron R. White:

You can go and ask him without reasonable suspicion what his name is?

Yes.

Justice Berannan:

But if you do have reasonable suspicion then without asking him any questions you may immediately frisk him?

Yes, because the frisk often is at the initial stages —

Byron R. White:

And it has to be.

Of the questioning and —

Justice Berannan:

Well certainly if the justification for the frisk is —

That’s right.

Justice Berannan:

— that the officer not be killed or injured.

Yes, and there were some instances where —

Thurgood Marshall:

I have a great problem with that.

The officer has suspicion that this man is engaged in selling narcotics and he is the most casual milk toast type of guy you ever laid eyes on.

So he has the right to frisk him or isn’t it true that he only gets the right to frisk if he reasonably thinks his life is in danger?

The latter, he must reasonably suspect that his life is or limb is in danger.

Thurgood Marshall:

And that’s the limit, that’s the limit?

That is the limit.

The statute doesn’t authorize a frisk in every instance and it hasn’t been despite the claims that have been made at this Court.

Earl Warren:

But in the Peters case again — but in the Peters case was the officer in danger of his life?

I think so.

Earl Warren:

He has to chase the man down two flights of stairs to frisk him?

I think it’s a dangerous.

I think he chased him so that he could stop him and bring him back to the scene.

I think he chased Mr. Peter so that he could stop him and bring him back to the scene and see what happen and I think it would have been unreasonable to expect the officer to do that without making a very minimal self-protective inquiry.

Now if the officer had been shot and killed that would have been impossible to balance against the number of people who are touched in those circumstances.

Earl Warren:

I’m not — that officer did act reasonably in the circumstances, he didn’t even act with probable cause, but I understood you to say a moment ago absolutely this stop-and-frisk ordinance was limited to instances where the officer thought his life was in danger.

Now in this case, in the Peters case, he walked out of — these men were tiptoeing along the hall and he opened his door and banged it and when they heard the bang they ran, and ran down to couple of flights of stairs and he chased them and caught them.

Now, in applying the stop-and-frisk law you have to say that officer did that because he thought his life was in danger, would you, wasn’t, didn’t he do that because he thought these men were burglars and he detained them because he thought they were burglars.

So that’s why he detained them and I think he frisked them —

Earl Warren:

Yes, well isn’t that a question of probable cause.

I think it’s a problem of reasonableness.

Earl Warren:

Well, reasonableness of frisk, under our Constitution is been said to be probable cause, isn’t it?

It’s probable cause to believe in the context of an actual arrest and it’s context of other searches or intrusions, probable cause can just mean reasonableness that was the express language of a majority of this Court in the Camara case.

I think that the probable cause standard which is stated in the Fourth Amendment applicable to warrants is not designed to cover every intrusion of any kind and the Court has repeatedly so held.

That is just one example, singled out by the framers because there was a particular evil that was aimed at that required the specification of that one example of reasonableness.

And whether the Court should consider this probable cause or consider it a search or seizure that is not unreasonable.

I think the ultimate result is that what the officer did in this case and many other cases that it represents was reasonable and if it’s reasonable the conduct should not be disapproved by the Court and evidence obtained in this reasonable manner under traditional rulings is admissible in Court.

Gretchen White Oberman:

Mr. Chief Justice —

Earl Warren:

Yes, you are —

Gretchen White Oberman:

— may it please the Court.

I must speak to the question of mootness which was not raised at any stage of this case before yesterday.

I have a minute and 40 seconds left and I have a minute and 40 seconds argument prepared.

Jurisdiction was noted in this case before this Court’s decisions in Jacobs and Tenenbaum against New York and before this Court’s decision in See against Seattle.

In all these cases there were suspended fines or non-felony sentences which could not be executed at a later date.

Under Jacobs and Tenenbaum, Sibron is moot, under See against Seattle it is not.

The problem of mootness is of particular concern in New York where it’s virtually impossible for an appellant in New York to obtain bail pending appeal and thus preserve this case for Federal review.

Moreover, under Section 555 of the Code of Criminal Procedure, bail on appeal is prohibited to one situated as well as Sibron.

This Court should reconsider Jacobs and Tenenbaum or at least limit them to cases that did not become moot because of the petitioner’s indigence or because of the state’s limitation upon the right to bail pending appeal.

The confession of error in this case points up the weakness of the Jacobs and Tenenbaum rule.

Sibron is a case concededly wrongly decided which if dismissed will never be set right.

On the District Attorney’s concession, we have stated that our only interest as advocate for Sibron is to obtain making sure of his conviction.

Our response to questioning yesterday stems from our doubt as to this Court’s power to except one District Attorney’s concession that the New York Court of Appeals erred not once but twice in holding that it’s own statute applied to this case and also from our conviction that the non-bailable petty offenders of New York should be able to rely not only on the conscience of one man in a busy District Attorney’s office to see that they get justice, but on the entire judicial system of the State of New York especially where the consent is not upon the New York Courts within its own Court system.

Earl Warren:

Thank you.

Gretchen White Oberman:

May we file a brief on mootness, Your Honor?

Earl Warren:

Yes, you may.

You may respond if you wish to Mr. Siegel.

Gretchen White Oberman:

Thank you.

Earl Warren:

Number 74 — I suggest you do that very properly because we’re in a longtime schedule, it’s been two, three days, if you do that.

Gretchen White Oberman:

Thank you Your Honor.

Earl Warren:

You may have it type written instead of printed if you wish?

Gretchen White Oberman:

Thank you Your Honor.

Earl Warren:

Number 74 John Francis Peters versus New York. Mr. Friedman.

Robert Stuart Friedman:

Mr. Chief Justice, members of the Court.

May it please the Court, this cause is before the Court today on direct appeal from a judgment of the New York State Court of Appeals, which judgment confirmed the defendant’s conviction for the illegal possession of burglar’s tools.

On this appeal, the defendant contends that a certain search of this person and the seizure of evidence there from constituted an unreasonable search and seizure of his person in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution.

In this case, as in the Sibron case, the validity of a state statute, namely Section 180 (a) of the New York Code of Criminal Procedure has been drawn into question.

Additionally there have been raised in this case broad questions, which concern the rights of our citizenry to move about freely without undue police interference.

May I briefly set forth the factual material, underlying the events in this case?

The appellant was arrested in the City of Mount Vernon in New York on July 10, 1964 at or about 1 pm on that day by a man by the name of Lasky who at that time was a police officer attached to the Police Department of the City of New York.

On a preliminary hearing in the City of Mount Vernon, officer Lasky testified that at the time in question he resided in the six-floor apartment of a very large multiple dwelling, located in the City of Mount Vernon and that approximately at 1 pm on that day he had finished taking a shower, or he was in the process of taking a shower, when he heard some noise outside of his apartment door.

He testified that he went to the peephole of his apartment door, looked out and then he saw two men whom he did not recognize, tiptoeing to the common hallway of the premises.

Then his testimony was that he made a telephone call and that he put some clothing on, again looked through the peephole of the door, saw these two men in the common hallway tiptoeing and that he left his apartment with his drawn service revolver in hand.

And then he heard the two men descending the staircase, common stairway of the building and he pursued them and that he apprehended the defendant at a point midway between the fourth and fifth floor landings of the common stairway of the premises.

Earl Warren:

May I interrupt just a moment?

Robert Stuart Friedman:

Yes.

Earl Warren:

Wasn’t there a little more to the facts on that, didn’t he say that as soon as he came — when he came out of his door, he slammed the door deliberately to see what affect it would have on them and when they heard that slamming of the door, they ran, ran downstairs, am I wrong in that?

Robert Stuart Friedman:

My recollection of the testimony Mr. Chief Justice is somewhat different, though it maybe a slight difference.

I don’t believe that he testified that he slammed the door for that purpose.

He may have testified that he slammed his door and heard them exiting hastily, but I don’t believe that it was done for that purpose or that there was any testimony in the record to that effect.

Abe Fortas:

Is it your position that these facts do not constitute probable cause for an arrest?

Robert Stuart Friedman:

Mr. Justice Fortas it is not only my position, but it was the New York Court of Appeals’ position because —

Abe Fortas:

I understand that.

Robert Stuart Friedman:

— in referring to this case later on in the Taggart case when they summarized all of their decisions as to what had gone before, they say that in 20 N.Y.2d 335, that, “And even in People v. Peters, where the officer initially frisked the defendant and felt something hard, this Court held that the officer did not have “probable cause” to make the arrest until he actually reached into the defendant’s pocket, withdrew, and identified the burglars’ tools.”

So this has been conceded by the People and reflects the opinion of the Court of Appeals additionally.

Abe Fortas:

Some of us may feel very pleased of the very high standards of the New York Court of Appeals in this instance, but when you look at in terms of the Fourth Amendment, you regard this as a case of probable cause?

Robert Stuart Friedman:

Yes Your Honor because —

Abe Fortas:

You do?

Robert Stuart Friedman:

That is not a case of probable cause.

Yes I do regard it as not coming up to the level of probable cause, because in the first instance whatever suspicions may have been in the police officer’s mind, there is nothing factually in the record which gives rise to the inference of the commission of any crime or the imminence of the commission of any crime.

If we examine the totality of his observations, he saw two men tiptoeing in the hallway and while this may not be legitimately normal conduct as I believe Judge Galloway in the County Court decision denying suppression, I believe that was Judge Galloway’s language, “I maintain that every conduct that one observes which is not perfectly normal, perfectly legitimate does not necessarily give rise to probable cause.”

Thurgood Marshall:

Well Mr. Friedman didn’t he first hear first somebody or a sound that seemed to purport that somebody was tampering with his door?

Is that right or wrong?

Robert Stuart Friedman:

Mr. Justice Marshall I must say that, that is wrong in the sense that he testified that he heard some noise at or outside of his door, but there was no testimony that there was any tampering with any door and as a matter of fact —

Thurgood Marshall:

He heard a sound outside of his door which obviously was not a normal sound or he wouldn’t have attracted, correct?

Robert Stuart Friedman:

What attracted the police officer, I don’t know, but there’s —

Thurgood Marshall:

Well I assume the police officer didn’t every minute on the minute look out for people.

Can I assume that?

Robert Stuart Friedman:

Mr. Justice Marshall you’re quite correct in the assumption, but I don’t think that necessarily follows that there was any attempt to tamper with his door.

Thurgood Marshall:

But he heard a sound, which attracted his attention at or near his door.

Robert Stuart Friedman:

Correct.

Thurgood Marshall:

And then he looked out the peephole and saw two men tiptoeing around.

Robert Stuart Friedman:

That is quite correct.

Thurgood Marshall:

And that doesn’t raise any suspicion in your mind?

Robert Stuart Friedman:

I said that it may raise suspicion, but it would embrace probable cause for the type of conduct ensued.

Thurgood Marshall:

As the result of this suspicion he went out to try to find out what was going on outside of his doorway.

Robert Stuart Friedman:

That was his right —

Thurgood Marshall:

And he shut the door and lo and behold he’s seeing two men took off, he still doesn’t have any suspicion about anything.

Robert Stuart Friedman:

No, Your Honor I agree that he does have suspicions, but I disagree with the proposition that he has probable cause to believe that there was a crime, that a crime had committed, or was about to be committed.

As a matter of fact when officer Lasky grabbed this appellant by the collar and dragged him down half a flight of stairs and asked him what he was doing in the building.

He said that he was there for the purpose of visiting his girlfriend and upon being pressed for the name of the woman in question, the defendant said he didn’t wish to reveal the name of the woman in question because she was a married woman and that explanation at least on the face of the explanation is consistent with tiptoeing through a common hallway of a large multiple dwelling, where there a 120 families.

Hugo L. Black:

But the officer did not believe it?

Robert Stuart Friedman:

Excuse me?

Hugo L. Black:

The man might not believe the —

Robert Stuart Friedman:

Yes, but I don’t think that every time a police officer doesn’t believe an explanation given by a person, he rudely seizes by the collar at gunpoint that he’s entitled to take further action because —

Hugo L. Black:

And it also might not be true, the man might be there tiptoeing around with a set of burglar tools in his pocket?

Robert Stuart Friedman:

That might very well —

Hugo L. Black:

It might be possible?

Robert Stuart Friedman:

It might very well be possible, but on the other hand in looking at the problem from the protection of our citizenry in general, the man might be a man who was not engaged in any criminal activity whatsoever, so that if we accept the —

Hugo L. Black:

You mean in [Attempt to Laughter] the burglary type?

Robert Stuart Friedman:

In the burglary type, [Attempt to Laughter] if we accept the construction of the statute, given by the New York Court of Appeals in this case, without looking at what the fruits of the search actually did produce in this case and we look at the facts which preceded the search, we accept a construction which permits a police officer on intuitive hunch or guess as opposed to probable cause with respect to a commission of a crime, to seize the person probably at gunpoint, search him without his consent and in the absence of any, overt act of criminality.

Abe Fortas:

Mr. Friedman I have always a problem about reading records in this area, but here the policeman heard this noise, words — exact instruments to describe the noise, but the policeman heard a noise and he picked up the telephone and he called the local police, didn’t he?

Robert Stuart Friedman:

That’s correct.

Abe Fortas:

Now then that suggests to the reasonable mind that it was not the noise of somebody walking through the hall and going to a cocktail party, because I suppose a policemen, one may assume the policemen are considered they call a policeman and don’t put in alliance for no reason at all.

Then the policeman who testified here got his service revolver and finally went charging, after making this telephone call and went charging out of his door with a drawn revolver and it seems to me that there should have been a lunacy inquiry about this policeman or that one has to read this with some with authority here and assume that these noises were something more than just a noise that they consider a citizen tiptoeing down the halls so it wouldn’t disturb people having a siesta.

Robert Stuart Friedman:

Mr. Justice Fortas, it is true the record does not reveal preciously what the sound was that the officer heard and perhaps that is unfortunate that a record comes to the Court and that’s –.

Justice Berannan:

Well it did say it was a noise at the door.

Robert Stuart Friedman:

At the door that is correct Mr. Justice Brennan, but may I say that in a situation like this it is appellant’s contention that where you have suspicion which does not rise to probable cause that the proper police action and one which he does not even use the statutory authority for, could have consisted very reasonably in observing what these two men were doing possibly following them and possibly demanding an explanation without the use of the force of their presence in the building and if the purpose was to deter a burglary, if that was his objective in mind at that juncture he would be have accomplished his purpose, but I don’t think the record shows that, that was his purpose at all, because the record shows that when he removed this plastic envelope from the defendant’s pocket it was an opaque envelope that was sealed.

So that at this moment in time when you have the envelope taken from the defendant he had no knowledge as to the contents yet, but in any event he had no fear for his life because the defendant had no hard object at that point.

At a later point in time the record shows he opened up the envelope in order to discover what was inside of it which leaves one to the inescapable conclusion that the search of the appellant was for the primary purpose of exploring for evidence.

Hugo L. Black:

What was in the envelope?

Robert Stuart Friedman:

In the envelope it is conceded that there were tools to the commission of burglary.

Hugo L. Black:

What was it?

Robert Stuart Friedman:

Some Allen wrench and some picks I believe were described in the record.

Hugo L. Black:

Specifically what?

Robert Stuart Friedman:

Presumably.

Hugo L. Black:

Well that’s what they use for —

Robert Stuart Friedman:

I would presume that they were because it was conceded below that the issue in this case dealt with the reasonableness of the search and seizure vis-à-vis was there probably cause where we can see — where we contended on the preliminary motions that probable cause does not exist in this case and where the courts agree that — New York Courts agree the probably cause did not exist and decided this case on the basis of the statute Section 188 and on the basis of case law having substantial equivalent, substantive equivalent of the statute and I refer to People v. Rivera which is found in 14 N.Y.2d I believe.

And all events if we look at the statute, if I might turn my directions to that for a moment, you have a situation where the courts seek to substitute a standard of what is described in the statute as reasonable suspicion or probable cause.

Hugo L. Black:

May I ask you this when — what is the difference between reasonable suspicion and probable cause?

Robert Stuart Friedman:

Well as I apprehend the —

Hugo L. Black:

That words that contest.

Robert Stuart Friedman:

As I apprehend the distinction as is outlined by the New York Court of Appeals and really that is the only basis that I can have for an opinion as to the meaning of reasonable suspicion as opposed to probable cause, reasonable suspicion calls for the intuitive appraisal of a police officer that a crime has been committed or is about to be committed and in the words — exact words of the Court of Appeals, I believe it was Judge Keating’s words which said that the standard of knowledge, the quantum of knowledge that the police officer has at that juncture when he entertains a reasonable suspicion is lower on the scale of criminal activity then would be required in a probable cause case so that you are dealing with a standard which is less than probable cause in a constitutional sense as we have known —

Hugo L. Black:

Now does the constitution of — any constitutional sense that Federal questioning —

Robert Stuart Friedman:

That is correct.

Hugo L. Black:

Suppose one who had interpreted the Federal law see no difference constitutionally speaking between the reasonable suspicion and the probable cause?

Robert Stuart Friedman:

Well I think at this point the construction of the statute as construed by the New York Court of Appeals is the issue, I would take no quarrel with the New York Court of Appeals how they construe it.

Hugo L. Black:

But we have to construe it according to the Federal meaning of it since this is a comparison of whether reasonable suspicion means probably cause, so the New Court did say that.

The did Court did find imaginary distinction.

Robert Stuart Friedman:

Mr. Justice, I would say that this Court has to accept the construction of a statute as it comes to this Court from the highest State Court.

Hugo L. Black:

On the constitutional basis?

Robert Stuart Friedman:

Yes and if the —

Hugo L. Black:

Don’t we have to construe what probable cause means?

Robert Stuart Friedman:

I believe this Court has —

Hugo L. Black:

Or if we said that probable cause as a matter of reasonable suspicion, what’s the meaning?

Robert Stuart Friedman:

Yes, but then we would be dealing with the same quantum of evidence and knowledge which we have known in traditional causes — in probable cause cases and the Court of Appeals has settled for something less and its conception here what reasonable suspicion means and this appellant states that we — and its our position that we cancel something for probable cause.

Hugo L. Black:

You look and see whether the circumstances of this case, this man tiptoeing in a hall of an apartment, running when the door opened, whether that gives the probable cause to believe he is up to something bad at that time has just done it or is about to do, that’s our problem, looking at the circumstances and not the words used by the Court of Appeals.

Robert Stuart Friedman:

Well I think the circumstances and the facts in every case judge are important and that is Mr. Justice are important and that is why I say in this particular case the extent of force in the detention as opposed to merely stopping somebody and asking and making an inquiry, a legitimate inquiry as to what he is doing with any citizen or any police officer has the right to do constitutes something.

Hugo L. Black:

Do you think the position of the policeman has the right to do that?

Robert Stuart Friedman:

I take the position of any citizen can go up to another citizen, it needn’t be a police officer and ask him any questions he wants and I take a position that there is a corresponding right on the citizen to resist an invasion of privacy just as I take the —

Hugo L. Black:

Well you would say the policeman has the right to ask you, but he doesn’t have a right to expect an answer?

Robert Stuart Friedman:

And he doesn’t have a right in my view additional may I say Mr. Justice to grab him by the collar at gun point.

Hugo L. Black:

Well I am not talking about the collar, I am talking about asking the questions.

Robert Stuart Friedman:

Yes I would think a police officer has the right to ask a question to anybody.

Hugo L. Black:

But does he have a right to expect an answer or get an answer?

Robert Stuart Friedman:

No, I don’t think he has a right in the constitutional sense —

Hugo L. Black:

Suppose the man was walking around in a busy city, now they have a residential that, nothing but residences within three miles, [Inaudible] and at 4:00 o’clock in the morning and dark and rain, they find a man prowling around in alley right behind the house would you say that that gives the probable cause for a policeman to ask him a question?

Robert Stuart Friedman:

I would say that probable cause is not needed for the police officer to —

Hugo L. Black:

Not what?

Robert Stuart Friedman:

I would say that probably cause is not needed for the police officer to ask a question.

Hugo L. Black:

Or would you say that he had a right to ask and expect an answer to the question?

If then —

Robert Stuart Friedman:

I would say that he might have a right and if we view this in a non-constitutional sense, but I would say that every person when —

Hugo L. Black:

I am talking about the —

Robert Stuart Friedman:

If I may count in terms of the Fourth and the Fifth Amendment I think the person stopped has a right to answer — not to answer if he so chooses or to indicate that he doesn’t want to answer.

Hugo L. Black:

Then what can the policeman do, does he let him leave that this dark alley at 4:00 o’clock in the morning?

Robert Stuart Friedman:

If he has not seen or observed any overt act of criminality or the facts which could indicate that there was probably cause for crime to be committed I would say yes and the reason why I would say yes —

Hugo L. Black:

Nobody had a right to stop him at 4 o’clock in the morning, three miles from any business, prowling around in the back of a person’s home.

Robert Stuart Friedman:

The reason why I would say that without discussing whether or not given facts in this case, assuming if the given facts in this case do not rise to that level required for probable cause to make an arrest, I would say that the citizen should have a right to go about on without undue interference and I don’t think this is a great burden to place on law enforcement.

Hugo L. Black:

You would say that under those circumstances, if the policeman on duty to let him go here and go away after he is found him there 4 o’ clock in the morning next to the basement door — next to the basement door.

Robert Stuart Friedman:

Well, now I think Your Honor has added certain facts which may make it rise to a probable cause situation, but if for the purposes of —

Hugo L. Black:

It won’t be a probable cause would it if he had committed crime?

It would be a probable cause wouldn’t it that he is there for a certain purpose you can have a reasonable suspicion that he is not there on any holy issue?[Laughter]

Robert Stuart Friedman:

There is no argument with that Mr. Justice Black, but the bone of contention comes into those situations where a police officer is permitted to make this type of stop, stops somebody who later turns out to be — has a legitimate right to be where he is, while I will say that most citizens are cooperative with police enforcement, law enforcement agents and when asked a question they will normally respond in a cooperative manner.

Hugo L. Black:

Does your imagination allow you to conjure up any reason by a man who could be around back of a house 4 o’clock in the morning, rainy night, walking backwards and forwards and prowling around into the houses there, can you conjure up any reason?

Robert Stuart Friedman:

Well if he had the same reason as Mr. Peters had, coming for visiting a woman or somebody else and wishing not to be observed it would be a reason, yes.

Hugo L. Black:

I don’t suppose he needed his burglar tools for the purpose?[Laughter]

Robert Stuart Friedman:

I quite agree with you Mr. Justice Black, but I think this Court has said in many instances that the fruits of a search do not justify the search and that the steps which — the steps which precede a search must in their entirety be legal and lawful and constitutional.

And I do not for any moment hold any brief for any man nor I do expect the Court who has burglar tools in his possession and I refer the statement that Judge Fold of the Court of Appeals made when he dissented in this case and talking about the fact that Peters deserves some punishment perhaps for possessing burglars tools.

Judge Fold said “But I cannot forget that the rights and privileges guaranteed by the Constitution are assured to every individual to the worst and the meanest of men as well as to the best and the most upright” and I submit that this —

Hugo L. Black:

Of course the question whether that’s a constitutional right.

You say if you can’t assume that a man is not entitled to his constitutional right, so that assuming — we have to assume that this is the constitutional right, the question would be the judgment —

Robert Stuart Friedman:

The assumption is that to stop a man unless than probable cause at gun point, I presume as Judge Fold’s assumption, unless there’s probable course for believing that he has committed a crime or is about to commit a crime on a standard which depended upon the police officer’s intuitive reaction to a situation does not meet the constitutional test of probable cause and if it should develop that from that search that yes this police officer had a correct hunch in this case, that doesn’t justify what the police officer did merely because his hunch was correct in this case, what he did was wrong even though imperially he may have gotten a good result by finding burglars tools on this man’s person and this is part of the contention that the appellant raises.

Hugo L. Black:

What we are up against is [Inaudible] this society of people live close together when darkness comes on, rain comes on and night comes on, when people are not [Inaudible] subject safety trying to find out why people are holding unexpected [Inaudible] during entirely unexpected cases and whether we are to construe the Fourth Amendment as far as the government on having a reasonable opportunity to try to find out what’s going on in the interest of public safety.

Robert Stuart Friedman:

Yes sir, Mr. Justice may I respectfully say that it is our view the evolution of Fourth Amendment and the framers purpose, frames of the Fourth Amendment in seeking to prevent against general warrants that this was a —

Hugo L. Black:

Of course this has nothing to do with general warrant?

Robert Stuart Friedman:

No I conceded that, if I may develop this for a moment.

This was directed against the type of indiscriminate type of searches that might take place based upon the whim and caprice of people in authority and in particularizing the requirements for a such a search by mandating a requirement of probable cause, we sought I believe during our history to narrow the base of those instances where the liberties of people in general as opposed to a particular individual whom there is a certain quantum of evidence to believe has done or about to do something wrong should be searched.

When the level comes to probable cause, this Court in the past has indicated that it’s a reasonable level and then it falls below probably cause, it is an unreasonable level and the difficulty with the standard proposed by the New York legislature and the New York Courts is that the interpretation of reasonable suspicion can be so varied as to differ with every policemen who was out on the street because it only calls for an intuitive reaction on his part and when the Court of Appeals concedes that it calls to less than probably cause in the sense that this Court has from time to time has enunciated, it is saying that we are going to give a policeman the authority to stop citizens on a lesser bases for but believing that they have done something wrong in a criminal sense, than we would if they went to a magistrate and applied for a warrant or some other judicial authority because we are going have to rely on the generality of experience police judgment to conduct searches and their judgment and their reaction to a situation to determine reasonableness.

And I suggest that it’s just this is type of rationale and it is just this type of evil which the Fourth Amendment sought to protect against, to interpose a judicial barrier at a — with a definable standard, rather than leaving to the —

Hugo L. Black:

What was the judicial barrier?

Would you have a reasonably — had about reasonable judicial barrier?

Robert Stuart Friedman:

MYes sir, I would Mr. Justice Black particularly in the light of the construction given to that term over the years by the Court.

I think that the greatest evil, if we can isolate for a moment ‘a search, the fruits of search and look particularly to the events which preceded, if we say that we are going to justify searches because in certain instances a police officer’s hunch is correct and had he proved wrong in this case what would the remedy be in a civil suit which might be largely (Inaudible).

The cases that we never hear about are the cases where there has nothing been produced because they never get to Court and it’s the right not only of this appellant, which of course I am primarily concerned with, but it’s the right of our citizenry in general, which we must concerned with and the generality of these cases are never heard because we only hear about those cases where the hunch has been correct, but the ambiguities to which a great number of our citizens are put are unimaginable and this statute would broaden —

Thurgood Marshall:

[Inaudible]

Robert Stuart Friedman:

I would agree with you Mr. Justice Marshall, but I would add that again there is no evidence of this defendant in this record checking what this man thought and I think the record bears that out.

Hugo L. Black:

Why do you think he got up and looked around?

Robert Stuart Friedman:

Because he heard some noise Mr. Justice Black.

Hugo L. Black:

Where?

Robert Stuart Friedman:

Outside of his door.

Robert Stuart Friedman:

It could very well be —

Hugo L. Black:

Do you ever hear noise at your door at night when you are alone?

Robert Stuart Friedman:

I don’t really recall getting up to look judge.

Hugo L. Black:

I imagine [Inaudible].

Robert Stuart Friedman:

Well this was at 1 pm., in the afternoon, in the middle of a July afternoon when this occurred, not at night Mr. Justice and the —

Hugo L. Black:

You still wouldn’t like somebody meddling with your door —

Robert Stuart Friedman:

If I thought that somebody was meddling with my door I might have done exactly, without being sure I might have — and I had some suspicion, I might have done what this police officer did initially, make an inquiry to the local police or to observe further conduct of this person that I saw whom I didn’t recognize, but I would scarcely feel myself justified in taking a gun and physically seizing this person and demanding him at a gun point what are you going in the building.

Potter Stewart:

Well what if he had called the police, which you say now is proper from to do then the police would had come and what could they have done?

Robert Stuart Friedman:

If the fellow had in fact been observing doing something wrong in the sense that arose to the probable cause level, they could have arrested him.

Potter Stewart:

But if all they saw was this man in a landing and that’s all of course that the tenant policeman could have told them, and the police under your theory would have been powerless to do anything after they came.

Robert Stuart Friedman:

At the very least, at the very least, if we hypothesize for a moment that the some determent action in demanding of a man is — what it presents in a particular area or is giving the (Inaudible) themselves, they would have accomplished that irrespective, if you hypothesize that the man was going to commit a crime and if we look at the other side of the coin, if the man was not going to commit a crime and he did nothing illegal and they just let him go, they wouldn’t have to exercise the physical restrain at gunpoint which was exercised on this appellant —

Potter Stewart:

But the fact is that he was doing something illegal by having in his possession burglar’s tool and so we’re not, there’s not point hypothesizing anything about it because we know —

Robert Stuart Friedman:

But that fact, and that fact only becomes apparent after the illegal search and unreasonable search as expressed in the constitutional sense and I say that because the police officer guessed correctly in this case, does not justify his actions because he just as equally with respect to another citizen could have guessed wrong and that is why we provide —

Potter Stewart:

What if this man hadn’t been a police officer, he wasn’t a, he wasn’t a Mount Vernon police officer, he just happened, he was a commuter, he’s out there in Vernon because he was a bank clerk in New York, when he went to work in New York instead he was off-duty, he was a tenant in an apartment in the City of Mount Vernon in New York and what if he had been instead of policeman, a bank clerk, hadn’t had redemption of the bravery, that’s why it takes a certain amount to do what this man did here, happen to be a policeman wouldn’t, that would have been a perfectly valid citizen’s arrest under the Constitution of the United States.

You’re in the shower and you hear your apartment burgled.

Robert Stuart Friedman:

May I answer your question with another supposition, supposing the man didn’t have burglars tools and this citizen who was the bank clerk grabbed him by the collar with the gun, what about the citizen rights under those circumstances?

Would not it be true that his rights of privacy and his rights of protection under the Fourth Amendment would have been grossly invaded?

Potter Stewart:

I think you would have been very able to defend that kind of against any charge or false arrest, wouldn’t you?

Robert Stuart Friedman:

I don’t know when this New York decision is necessarily true Mr. Justice.

Harry A. Blackmun:

That would have been possibly true if that there comes a time in life when a man has certain emergency situation nobody can tell whether you kind of get in and prevent the burglary or rape or something else that took place but you don’t have enough risk but if somebody had the right to do something in order to awake the time when somebody has a right to take action that will protect the subject against —

Robert Stuart Friedman:

Well, this police officer had a right to take action —

Hugo L. Black:

But he didn’t have the right to demand any reply?

Robert Stuart Friedman:

No, I don’t say —

Hugo L. Black:

[Inaudible]

Robert Stuart Friedman:

Yes, but I was about to say that this police officer had a right to take action but not the sort of action which he took in this case.

He had a right —

Hugo L. Black:

If I would have imagine, that if a man thought he had [Inaudible] burglar, he would not be there reflecting as to the exact movement his arms made and his body made in order to protect him from that which he deemed to be a very great danger to life [Inaudible]

Robert Stuart Friedman:

Well, may I say that in this particular case the record is totally barren of any evidence to support the New York’s Statutory requirement that the police officer have any fear for his life or limb.

Absolutely nothing —

Hugo L. Black:

The man was sleeping around, if the man was sleeping around in an apartment in between or trying to open the door and naturally human being would assume that he had kind of weapon to use if he needed, wouldn’t you?

Robert Stuart Friedman:

I don’t —

Hugo L. Black:

Wouldn’t you think so?

Robert Stuart Friedman:

I don’t agree with Your Honor’s construction of the facts in the record know the assumption is clear.

Hugo L. Black:

Well, those are the facts?

Robert Stuart Friedman:

If I saw him actually trying to open up the door then there’s a situation of probable cause.

Hugo L. Black:

Well you heard him tampering with your door?

Earl Warren:

He might still have thought [Inaudible]

Robert Stuart Friedman:

It might have been across, it might have been across the hall and as a matter of fact it’s interesting to note in this record —

Justice Berannan:

In this instant he had the burglar’s tolls to get in?

Robert Stuart Friedman:

No, I am not.[Laughter]

As a matter of fact, the facts in this record — the facts in this record in the case indicate that this officer went upstairs and found no evidence of any tampering with any doors, the record so indicates.

So if we’re going to, if we’re going to —

Hugo L. Black:

Well, I guess he didn’t have time to lift the screws up [Inaudible] to see what is going on?

Robert Stuart Friedman:

Well, if Your Honor pleases I suggest that the record does not support the inference that this man was committing a burglary.

Earl Warren:

Mr. Friedman, I’d like to refer back to the strange situation that Mr. Justice Black was put to you because I want to know how far you want us to go in this case.

You recall what it was, when the man was caught in the alley and so forth.

Now, I wonder if there is an element in the case that we haven’t yet discussed.

The question you’ve discussed, the question of whether you had the probable cause to believe that the man had committed a crime or was about to commit a crime and you thought that there was not and therefore he didn’t have the right to stop him and frisk him.

I wanted to ask this in the light of the fact that I suppose you will agree that a police officer has the right of self-preservation when he’s in a dangerous situation, being in the dark alley, below with a man under very suspicious circumstances in the morning and the man who has no explanation and will give no explanation.

I wonder if the officer before he leaves that man, doesn’t have the right.

If he has probable cause to believe that he might be injured by the bullet firing on him or throwing a knife on him because he — I wonder if he wouldn’t have probable cause in that sense to frisk the man to see if he had a weapon and if we shouldn’t put that element into the case also if — in other words I’m asking you even the Court, if the Court should agree with you to the extent that we can’t do this, they can’t stop and frisk him on suspicion whether if somebody considers its reasonable, whether police officer considers it reasonable or not, if were the police officer has probable cause to believe that his life is in danger, in his investigative process, if he does not have the right to find out if the person from whom the danger might come, is armed and in a position to inflict that [Inaudible]

Robert Stuart Friedman:

I assume that Mr. Chief Justice, I assume that your use of the word probable cause and your hypothetical was using the constitutional sense —

Earl Warren:

I do but what I’m mean is this.

There might be one set of facts, it would be probable – would constitute probable cause or would not constitute probable cause for the purpose of arresting event.

There might be another set of facts or the same set of facts might be sufficient to constitute probable cause so far as the officer’s safety is concerned and if those two — if those two shouldn’t be accommodated in these kind of situation.

Robert Stuart Friedman:

I will accept the proposition Mr. Chief Justice that probable cause in every case differs one to the other depending upon the facts of a given case.

I say that when probable cause exists in a constitutional sense for an officer to believe that someone’s about to pull a revolver on him or harm with some of the barbarly fashion then he has probable cause in the traditional sense for believing that a crime is about to be committed and has every right independent of a statute to take some action.

But here if you’re going to lower that to a lower, to a lower standard which has been interrupted by our New York Court, a standard requiring merely the subjective evaluation or as Judge Van Voorhis stated, it would allow searches on — practically unlimited searches based upon a subjective operations of the police always to mind without the — any evidence of overt criminality then you reach a point where you must draw some objective standard for determining the police officer’s, the reasonableness of the police officer’s conduct otherwise you are permitting a standard which is unenforceable in terms of restricting a police officer from making a intrusive searches which violates a citizen’s right of privacy.

In this particular case, the unworkability of the standard of reasonable suspicion is clearly demonstrated by the fact that — if by no other fact then in the Sibron case the Court of Appeals of the State of New York felt there was reasonable suspicion, the attorneys involved in that case did not, and the Kings County District Attorney office at this late date decide that it did not.

The unworkability and the harm to be perceived statute like that is in fact that a man like Sibron can do six months in jail, I hold no brief in narcotics people, when — he wasn’t sent there according to law.

Robert Stuart Friedman:

And if you are going to make exceptions as to our system and permit this type of incarceration when the steps preceding it are not lawful, then I think we do harm and injustice to our whole system of law and order.

In the final analysis our citizenry in general has to pay the price for that diminution in the protection for the individual.

Earl Warren:

Well, you are arguing that that under no circumstances can – can these – can an officer see a person has a weapon unless he has probable cause for believing that a crime has actually been committed.

Now I am wondering if an officer can’t be in certain circumstances where he might not have probable cause to believe that the crime has been committed, but he does have probable cause to believe that he might be seriously injured or killed if he doesn’t take some precaution.

And I am asking you if you want to force us to the point where we say that even if he does have probable cause to believe that he will be killed or injured that he cannot, cannot go over to a man to find out whether he has a weapon with which he would — with which he could do that.

Robert Stuart Friedman:

I suggest that there might be as Judge Van Voorhis suggested a middle ground.

I can offer the constitutional rationale to support it and that is formulating new exclusionary rules with respect to the products of such searches as a deterrent to police officers making baseless searches of this sort which I believe –

Earl Warren:

That’s another –

Robert Stuart Friedman:

As Mr. Judge Van Voorhis’ situation, but I think that there must be some protection in answer, direct answer to your question I think that we have to bear in mind that the base upon which we are going to allow an invasion of privacy to occur should not be indiscriminately broadened or open the door to that base and to whatever extent that we protect the liberties of our citizens in general it — consistent with the good of the community we must try and keep that phase as narrow as possible and as particularized as possible to the individual as opposed to the generality of people.

Earl Warren:

Well I am not disagreeing there, but it seemed to me that the counsel for the state agreed that this ordinance could only be for the purpose of enabling a law enforcement officer to protect his own life.

Now I just won’t agree.

Now that being true I am just asking you if there aren’t some circumstances where an officer confronts a person without probable cause for believing that he has committed a crime.

But before he leaves, he has reasonable grounds; probable cause for believing that he might get killed or injured if he doesn’t find out if the person has a weapon like that man is poking in the alley, that Justice Black was talking about.

Robert Stuart Friedman:

I suggest in answer to your question that in those extreme circumstances, you have a case which comes within the preview of our traditional probable cause notions that a crime is about to be committed or is ensuing because when a police officer —

Earl Warren:

Now you are shifting your ground, because you told Justice Black that he didn’t have and therefore he couldn’t decide and therefore he couldn’t arrest him.

You tell us also that this is an arrest to go over and to find out if he has weapon and I want to find out if —

Robert Stuart Friedman:

My answer to your question would be no.

In those situations absent probable cause in the traditional sense, he ought not have a right to search the man or the suspect for the simple reason as I view the construction of the statute as we have it now for example in New York.

The unworkability of it is illustrated that by decision it is implied that in every case the police officer is going to have to fear for his life because as Judge Keating said the answer to a question maybe a bullet.

So if that’s the position, it would seem to me that at least in New York and I don’t hypothesize in what statute might be drawn that would be a better statute but at least in New York the situation is as I read these cases that on every occasion that a police officer stops someone, he has to frisk him because — or search him because he presumes that he is in danger because he maybe — the answer to the question may be a bullet.

Well if this low level of causation or search, just restricted to the subjective operations of a police officer’s mind other than for example a situation where there is a noticeable bulge or a suspect does some overt act where he reaches into his pocket and the police officer reasonably suspects or has probable cause, a set of phrases you want to apply that he is about to withdraw a revolver and use at the police officer or a knife, I think if you would hit the standard as you have in New York my answer today, my answer will have to be a no.

If they are more workable, a more definitive standard can be worked out, then I say the answer is a, we have to judge in the light of requirements for a Constitution.

Earl Warren:

Well your argument seems to me has gone beyond the Sibron case and has gone beyond this case, we are on right now and you want us to state a general rule that prevents the police from doing these things under any circumstances.

If that is your argument, I was just trying to find out if you could go to that extreme?

Robert Stuart Friedman:

Mr. Chief Justice I am sorry –

Earl Warren:

Because in these two cases the man who made the arrest Sibron, and in this Peters case the man who made the arrest obviously was not in fear of his life at the time he went after these people.

They’re either probable cause cases or there are no cases over here.

I don’t see where stop and frisk law applies except that the New York Court said that it didn’t —

Robert Stuart Friedman:

Mr. Chief Justice you asked what I would have this Court do and I only deal, even though I perhaps have gone beyond that in scope of my replies with what happened to the appellant Peters, and I only say that the police officer’s conduct in this case went beyond what is constitutionally permissible and deals with the Fourteenth Amendment.

I am not suggesting that some type of legislation and I don’t suggest that the New York legislation is the answer, might solve some of the problems that’s affecting a balance between the need for law enforcement and the protection of privacy for the individual.

Robert Stuart Friedman:

I am suggesting however that the construction given by the New York Courts to a statute and to the police officer’s action in this particular case offends the individual rights under the Fourth and Fourteenth Amendment that is what I am suggesting.

Earl Warren:

Very Well –

Robert Stuart Friedman:

Thank you sir.

Earl Warren:

Mr. Duggan.

James J. Duggan:

Mr. Chief Justice may the please Court.

What I am afraid has happened here is that perhaps because of a label that’s been hung on this law, it’s called the stop and frisk and I think perhaps because of that label that it has been thought that these two rights, the right to stop an individual and the right to frisk him arrive simultaneously and exist coextensively and I don’t think that’s so and I don’t think a reasonable interpretation of that law should be that that’s so.

Now crime is rampant in the streets.

That it’s certainly not something that I think there can be any significant argument about.

The Federal Bureau of Investigation cites statistics that indicate that some classes of crimes have risen as a much as 18% in the course of the past year.

The President’s commission on crime has indicated that the FBI figures only scratch the surface.

There isn’t, I don’t think anyway, any argument that where a police officer has reasonable grounds to believe or probably cause to believe that an individual has committed a crime.

No one will argue I think that he has the right to arrest that man.

However, if he has less than those reasonable grounds to believe that individual has committed a crime, he may not arrest him and so in response to this middle ground, this completely uncontrolled, at least statutorily uncontrolled ground between the individual against whom no suspicion may arise and the individual whom a police officer may reasonably have grounds to believe that he has committed a crime, the New York Legislature responded by passing the Stop and Frisk Law.

Justice Berannan:

[Inaudible]

James J. Duggan:

Yes sir.

Justice Berannan:

[Inaudible]

James J. Duggan:

Not basically no sir.

Justice Berannan:

[Inaudible]

James J. Duggan:

Not basically again sir because I think —

Justice Berannan:

[Inaudible]

James J. Duggan:

I think we could rely on Rivera because the Federal Constitutional Law only considered this to the extent that it controls of whether — it decides whether it’s reasonable or unreasonable because the Federal Constitutional Law prohibits only unreasonable searches.

Justice Berannan:

[Inaudible]

James J. Duggan:

In that even Your Honor I suggest that the only thing that the Court has to decide here is whether this kind of a search is unreasonable.

Earl Warren:

You mean whether this search in Peters was not progressed in search on probable cause?

James J. Duggan:

I don’t say nor do the Court of Appeals–

Earl Warren:

Beg your pardon?

James J. Duggan:

I do not say nor do the Court of Appeals say that this was an arrest on probable cause.

I think we would be in very great difficulty if we attempted to justify it on the theory that this was an arrest —

Justice Berannan:

But suppose we [Inaudible] you are not suggesting that, are you?

James J. Duggan:

I am not suggesting you can’t Your Honor, but I suggest that it might be a little difficult in this case because the Court of Appeals I am sure —

Justice Berannan:

You are so anxious to have us pass on the constitutionality of [Inaudible]

James J. Duggan:

Your Honor, the Court of Appeals in the State of New York made two holdings in this case.

They said first of all that this was in conformity with the situation and with the case that was decided prior to the passage of the New York Statute.

If the Court does not choose to interpret this statute or pass upon its constitutionality, it may still affirm this conviction on the same basis as the Court of Appeals found in Rivera which predated the statute.

Justice Berannan:

Namely that it was probably cause?

James J. Duggan:

No, not probably cause Your Honor, but it was not an unreasonable search in the totality of the circumstances that existed.

Justice Berannan:

[Inaudible] I don’t understand why if we read this record as establishing probable cause whatever you say or your state court says, we can’t sustain this conviction on that ground too, why not?

James J. Duggan:

I don’t demand that the Court do anything.

Justice Berannan:

May not demand it.

Well, I am asking you why it is we can’t do that if that’s the way we read the record?

James J. Duggan:

I don’t say you can’t Your Honor.

[Inaudible]

James J. Duggan:

I believe basically stated it is Your Honor because —

Earl Warren:

What is your standard for that?

James J. Duggan:

The standard of the Federal Constitution, the standard of reasonableness.

Earl Warren:

Which is probable cause?

James J. Duggan:

Probable cause for what Your Honor?

I’ve heard the name probable — the word probable cause, if you mean probable cause to believe that a man has committed a crime, no, at least I view this case as not coming up to those standards.

If the Court means probable cause to suspect, that there is purpose to stop this man and asking him his business, then I think yes, the answer can be yes.

I don’t think probable cause to believe that a crime has been committed and this individual committed it.

I am only saying and what I am pointing towards Your Honor, is that this statute does not at heart authorize a search or a frisk.

This authorizes a police officer to stop a suspicious individual.

Now in paraphrasing the statute, the statute says whom he reasonably suspects.

Thurgood Marshall:

Well Mr. Duggan what about this point that everybody seems to wanted to get.

This is New York City Policemen [Inaudible]

James J. Duggan:

Your Honor the reason the appellate –.

Thurgood Marshall:

Either all of these phrases about field arrest and field investigations, he was in his home even [Inaudible].

He was enforcing the law any place, he was on duty, so how does he get authority to stop and frisk him?

James J. Duggan:

He is a police office, Your honor.

Our Court of Appeals has seen fit to permit a police officer from one jurisdiction and they did this by this case Your Honor, they have seen fit to permit a police officer from one jurisdiction to cross over into another jurisdiction and still remain a police officer.

James J. Duggan:

I can’t see that as a problem that this Court need resolve because it —

Thurgood Marshall:

I think you missed my other point, he wasn’t engaged in police work, he was showering?

James J. Duggan:

That’s correct Your Honor.

Thurgood Marshall:

In his own home, and it implies that the stop and frisking applies to that, suppose he is playing bridge does that apply to that?

James J. Duggan:

Your Honor a police officer is a police officer under the Laws of State of New York 24 hours a day.

He can be playing bridge —

Thurgood Marshall:

Does he police 24 a day?

James J. Duggan:

There are many jurisdiction in the State of New York, New York City being among which require a policemen to go forth armed 24 hours a day, yes sir.

Thurgood Marshall:

But is he on duty?

James J. Duggan:

He is on duty in the sense that he is required to respond.

Thurgood Marshall:

Let’s take real good consideration of words, when he is showering, he is on duty?

James J. Duggan:

This may sound silly, Your Honor, but I think he must be so regarded.

Thurgood Marshall:

You’re saying it, I’m not?[Laughter]

James J. Duggan:

Because —

Thurgood Marshall:

I am just thinking.

And my whole point is I think Mr. Justice Brennan said, [Inaudible] stop and frisk statute, I don’t understand why?

James J. Duggan:

Your Honor I’ll take the same position that the appellants took yesterday in Sibron.

I don’t care on what basis the Court chooses to affirm this conviction.

I’ll be quite honest, if the Court does not see that it is necessary to come to this point I don’t press it upon the Court.

Thurgood Marshall:

I see.

Justice Berannan:

[Inaudible] does this statute authorize [Inaudible]

James J. Duggan:

A great deal will depend on I should think anyway the interpretation that you would give to the expression public place, I think it might.

Justice Berannan:

[Inaudible] I am just wondering that does this mean that [Inaudible]

James J. Duggan:

I believe so Your Honor.

Justice Berannan:

[Inaudible]

James J. Duggan:

Yes sir I think so.

Justice Berannan:

As it’s being regularly applied to this situation.

James J. Duggan:

I don’t this being applied Your Honor, because when you say regular it imports a certain prescribed or preordained course of conduct and it’s not — I don’t think to be anticipated that in a preordained way or a preregulated way that suspicious circumstances are going to occur, which will make this a necessary or a routine thing or a 4 o’clock every afternoon affair.

A stolen car for example I should assume yes that it would be done on a routine preordained basis because a policeman is to be expected to be able to see a stolen car.

I have heard a great many people say here that is the subjective determination of the officer and I would like to answer that point because I just cannot believe that this Court is prepared to decide that what a police officer decides on the streets is the very last word in the point, because the fact that we stand here this morning debating the reasonableness of what Samuel L. Lasky did in the hallway of a public building in Mount Vernon in July of 1964 certainly gives the lie to any suggestion that the policeman is the final arbiter of the thing.

James J. Duggan:

By reason of this Court’s determination in Mapp against Ohio and Miranda against Arizona, New York has now developed, something they never had before, a workable, practical daily routine whereby the admissibility of evidence prior to a trial is decided upon and passed upon as a legal question.

There’s nothing so amorphous as reasonable grounds for anything.

So if you’re going to rely on a policeman’s capacity to decide what is reasonable grounds to believe that a crime has been committed, I see no reason for withdrawing from him, the acumen to decide when there’s reasonable ground to suspect because on the following morning, a court will convene some place in that jurisdiction who will pass on whether or not this officer had these reasonable grounds to suspect.

Earl Warren:

Mr. Duggan, didn’t your court through the opinion of Judge Keating equate this reasonable suspicion to the intuitive sense of a police officer who had been trained for years both to the schools and in his work to suspect people, crime and so forth?

Didn’t he equate that reasonable suspicion to the intuitive sense of a police officer?

James J. Duggan:

He made that equation Mr. Chief Justice, but I don’t think that he intended by that to indicate that this police officer was not going to be called into account.

Now it may very well be that he did say that reasonable suspicion, which has to be acted upon immediately will arise more quickly or more perceptibly in the eyes of an experienced police officer.

I don’t think he said that we’re going to accept this police officer’s determination blind.

I don’t think he intended, I’m sure he didn’t intend.

Earl Warren:

But the trouble is there is this judicial supervision that you speak of in the normal case.

The police officers could stop and frisk, hundreds of people in the day but maybe only one of them where they found a gun or found a sort of burglars tools of something of that kind, and that would be the only case of whatever been in the court.

The other hundreds of people who are stopped and frisked, nothing has found and where many of them are innocent people, never will reach the courts unless you have a suit for damages or of threats some thing of that kind and I think it’s almost impossible to find a situation where the police are curtailed in anyway by such actions.

James J. Duggan:

Your Honor I hesitate very long to tell this Court that it’s not going to be able to do something.

But if the Court decides that the way to curtail unwarranted frisks and searches by police officers where there’s no evidence found is to tell them that they will suppress the evidence which is not found, I think perhaps the Court maybe disappointed.

Because for example, if it is to be decided by some municipal police agency that the very fact that a police officer will go out and just if I may be excused for using a police expression roused everybody insight, on the theory that if these people know they are subject to being searched, they won’t carry guns, they won’t carry a contraband equipment.

If this is going at some point, at some place in the state of New York to be an official policy that is going to continue to be an official police policy because they won’t be doing it for prosecutor purposes, they will be doing it for purposes of control and it won’t get to us.

Earl Warren:

Of course if the police refused to follow the judgments of courts, we won’t have very high standards of law enforcement?

James J. Duggan:

No Your Honor we won’t.

Earl Warren:

We’ll recess now.

James J. Duggan:

— saying that this statute does not authorize a search and I’d like to return to that point for a minute because there’s there the seed of why perhaps in this particular case an exclusionary role is perhaps not going to be as effective as it was in Mapp against Ohio.

This statute basically and truly only authorizes a stop.

This was designed to give a police officer a weapon to use in that very large area between total innocence and likely guilt and all was stopped or I’m sorry, all the, all of the frisk or search depending on which word you prefer, purports to do is to give the police officer a way of disarming the person whom he has stopped.

That doesn’t mean that he can look into his shoes, it doesn’t mean that he can conduct a search of the interior of his clothing, it does not mean and most especially is this case is illustrative of that it, it does not mean that this police officer may look for evidence.

Because the fact of the matter is Mr. Justice Marshall has pointed out, this wasn’t his city, it wasn’t his responsibility, he had to go far out of this way to do what he did in this case. So it’s fairly apparent that he was not looking for evidence.

Abe Fortas:

Well, let’s take a case, if you will, where the policeman stops a person having reasonable basis for doing it.

James J. Duggan:

Yes sir.

Abe Fortas:

Then because of whatever facts may exist, he has reasonable basis for being afraid that he will be — that fellow is going to attack him and so he frisks him and then he finds a pistol and I’m sure you’ll take the position that pistol maybe used in evidence.

James J. Duggan:

Yes sir, we would.

Abe Fortas:

Suppose he finds an envelope with narcotics, the glassine envelope narcotics, you take a position that that maybe used in evidence even though the circumstances do not amount of probable cause, but barely amounted to reasonable suspicion whatever the difference maybe.

James J. Duggan:

Yes sir, we would take the position if that was —

Abe Fortas:

Why?

James J. Duggan:

For the reason Your Honor that as a basic proposition, as a search may not be justified by what it turns up it may not be condemned by what it turns up.

Abe Fortas:

I thought you maybe you said this is a search maybe you said it’s not a search but do you think that this statute authorizes a search of the person on the basis of reasonable suspicion that the police officer is in danger.

James J. Duggan:

Yes sir, I think it does.

Abe Fortas:

A general search of the person?

James J. Duggan:

No sir, I do not say that.

If, for example, a police officer approaches someone and he frisks him that’s all that this section purports to authorize him to do.

Abe Fortas:

We’re on the section; it doesn’t say that I think we’d agree with that on that?

James J. Duggan:

Well, let’s call it a search then.

I mean, I don’t want to dodge an issue for a word. Let’s say that we assume that this officer has the right to search an external — exterior search of this individual and he finds as the officer did in this case what he has reason to believe is a weapon.

Abe Fortas:

But take my case, glassine envelope with narcotics in it, pretty hard to think if that’s a pistol or knife?

James J. Duggan:

I grant you that Your Honor and I was assuming perhaps erroneously and if I have made gratuitous assumption I withdraw it.

I was assuming Your Honor that the glassine envelope of narcotics was found under such circumstances as would have permitted the officer to go after what he thought was a gun.

I do not think so that if that for example, a glassine packet of narcotics was found in the cuff of this man’s pants, I think it’s extremely unlikely that he would be looking for a weapon in the cuff of this man’s pants.

Abe Fortas:

Suppose it was found on the inside pocket where some people carry guns, as I understand, inside pocket of his jacket?

James J. Duggan:

I think if the Court will permit me to make the assumption that the officer has the right to reach into that pocket to recover what he reasonably believes is a gun.

Abe Fortas:

Is that find of the frisk?

James J. Duggan:

No, Your Honor, but then he has reasonable grounds for believing that a crime is being committed in his presence.

Abe Fortas:

That — you’re shifting.

James J. Duggan:

I’m not shifting Your Honor.

Abe Fortas:

Shifting, you’re shifting the assumptions on it.

Let me do it again.

I’d suppose that he’s got reasonable basis for stopping him —

James J. Duggan:

Yes sir.

Abe Fortas:

And he has a reasonable basis for fearing that he may be in danger that he the police officer may be in danger.

Then you’d say that you might have to man down first thing and he does that.

Not content with that he reaches him into the man’s inside pocket and you know he hadn’t felt anything, it feels like a gun or a knife and he pulls out a glassine envelope containing narcotics.

Has he or has he not violated the — is there or is there not a violation of the Fourth Amendment in the sense that in the Mapp against Ohio this, the narcotics that he found cannot be used in evidence.

James J. Duggan:

I think there is a violation of the fourth Amendment and I don’t think under those circumstances he could use the narcotics.

However —

Abe Fortas:

The whole case here is — your case here must necessarily unless we assume that there is probably cause, the case here must assume that a police officer when he came across the so fake envelope containing the burglary tools —

James J. Duggan:

Yes sir.

Abe Fortas:

Rightly thought he had felt a knife or some lethal weapon, we have to assume that, don’t we?

James J. Duggan:

I don’t believe so Your Honor, it’s in the record, he felt a hard, a hard object which could have been a knife.

Abe Fortas:

Well his testimony is ambiguous about it, well he said at least as I remember, as to whether, whether he thought it was a knife or did not think it was a knife, but anyway you have to make the assumption that the police officer went after what he thought or might reasonably have thought was a lethal weapon, alright?

James J. Duggan:

That’s correct.

Abe Fortas:

And then you take that, then you go from there and say that even though what he pulled out was not a knife, but a sort of burglary tool or let us say a pouch containing narcotics that that maybe used in evidence against him?

James J. Duggan:

I do say that, yes sir because if the search was reasonable at its incidence, when it began if was reasonable then what it turns up equally should be a reasonable exercise of the right of search that attached in the first instance.

Abe Fortas:

You are not to limit to right to search to the statutory premises and you may not limit the fruits of the search and what maybe done with the fruits of the search.

So let’s go for the second paragraph of this statute namely something necessary — something of which the policeman might have or been put in fear.

James J. Duggan:

No sir, because I think it’s an artificial comprise.

Either the man has the right to search or he has not got the right to search.

If he has not got the right to search then nothing that comes out of that pocket can be introduced.

Abe Fortas:

Well why do you exclude the cuffs of his pants?

James J. Duggan:

Because Your Honor I am assuming perhaps again without any authority for doing so that there is no weapon that’s going to be found in cuffs of the pants.

Abe Fortas:

[Voice Overlap] compromise to it and then maybe all light things but one has man [Inaudible]

James J. Duggan:

Yes sir but the comprise that this court may make in this area is going to last longer than my comprise.

Justice Berannan:

Mr. Duggan would I only be putting what you just said in different words if I were say that when he had a frisk and he came across something that he had reason to believe was a lethal weapon, but then at that moment probable cause for search existed.

James J. Duggan:

It could be so interpreted Your Honor but I don’t think so because I don’t think it has to be in this case.

I think the statute gives this man the right to protect himself, that’s all it’s intended to do.

Now if you give an officer authority to search for and examine for the presence of a weapon it makes no sense if you don’t give him a corresponding authority to remove that.

Justice Berannan:

Win and get it, [Voice Overlap] and then no matter what he turns out, contraband whether a weapon or not.

James J. Duggan:

If you acknowledge his right to go after the weapon and if in the same pocket he finds other contraband yes, I think it’s admissible.

Justice Berannan:

Whether there is a weapon or not?

James J. Duggan:

Yes Your Honor.

I would think that position, yes sir.

Thurgood Marshall:

Mr. Duggan I thought you said there is no thing, well to question the man, not to search it.

James J. Duggan:

It is.

Thurgood Marshall:

So the only permission that the officer had is to question and everything else depends on whether or not the officer is in fear of his life?

James J. Duggan:

That’s what the statute says Your Honor.

Thurgood Marshall:

So if he pats one pocket and feels a gun, he has the right to go in that pocket and take that gun out?

James J. Duggan:

Yes sir.

Thurgood Marshall:

And he pats the next pocket and he feels a glassine envelope, he has a right to take that out?

James J. Duggan:

No sir.

Thurgood Marshall:

Why not, I thought you said he had a right to, once he started searching in you get in there?

James J. Duggan:

Your Honor I have to go further perhaps in this case would insist that I do.

But if when he removes the gun he may then place this person under arrest and conduct a general search pursuant to the authority conferred upon him by that arrest.

Thurgood Marshall:

Well I don’t go there.

I go to the fact that he has a right to protect himself and once he disarms him, he is now protected, isn’t he?

James J. Duggan:

Yes sir he is, but he is also, standing in the presence of commission of a crime.

Thurgood Marshall:

According to the weapon?

James J. Duggan:

Yes sir.

Thurgood Marshall:

That only came about because of the right to talk, all this comes about because of the right to talk to the man.

James J. Duggan:

Essentially yes sir.

Thurgood Marshall:

That’s his only right is to talk to him, you don’t have any right to give me answer to that.

James J. Duggan:

That’s correct.

Hugo L. Black:

[Inaudible]

James J. Duggan:

That’s what he is out there for Your Honor, to detect crime and to prevent crime where that’s possible.

Hugo L. Black:

[Inaudible]

James J. Duggan:

Yes sir.

Hugo L. Black:

[Inaudible]

James J. Duggan:

Yes sir, pursuant to the arrest, yes sir.

Hugo L. Black:

[Inaudible]

James J. Duggan:

Yes sir.

Hugo L. Black:

[Inaudible]

James J. Duggan:

Not the formalities which New York has imposed Your Honor no sir, because we deal with 43 different police departments on our country.

Justice Berannan:

And no state police.

James J. Duggan:

None that I’m aware of Your Honor.

Justice Berannan:

Probably [Inaudible]

James J. Duggan:

Seems extremely unlikely.

Justice Berannan:

But do you have any essential disagreements with the, with over those New York county regulations.

James J. Duggan:

Yes sir, I have —

Byron R. White:

You don’t incorporate any view of the statute if you disagree with it.

James J. Duggan:

No sir I don’t.

Mr. Chief Justice I more or less committed myself to get Mr. Siegel a few minutes, I’ll differ to him if there is time Your Honor.

Earl Warren:

Very well.

Mr. Siegel.

William I. Siegel:

Mr. Chief Justice and may it please the Court and in these few minutes I want to make specific if I can an argument which I think has informed the general discussion that which I can’t believe has been put in haec verba.

The Fourth Amendment is the historical product of the experiences of the colonists with the minions of King George who would walk into a man’s home and rummage among his papers and who when they went into his home had the express purpose of finding evidence on the basis of which he could be arrested, convicted, and imprisoned.

And the language of the Fourth Amendment with its two clauses one prohibiting unreasonable search and seizure and the other restricting the right to search to search warrants that is to search is made upon severely restricted warrants, pictures this historic genesis of the Fourth Amendment.

Now — and this Court has had occasion before to enlarge the scope of search permitted even under the restricted language, the restrictive language of the Fourth Amendment.

One of the justices pointed out in the history of this Court that you could search in vain in the Fourth Amendment for the right to search as an incident to a lawful arrest itself based on probable cause and yet ex necessitate because conditions required if this Court laid down this, or may I say engrafted upon the Fourth Amendment, this exception which cannot be found in the language of the Fourth Amendment itself.

Just because the purpose of the search and in this agreement which some of my colleagues I believe New York has authorized a full search in the Taggart case just because the purpose of the search is not to procure evidence upon which to convict a man, but is solely for the purpose of protecting the officer in the performance of his obligatory public duty and his very necessary public duty.

The standard of probable cause can be relaxed because the purpose of the search is not the historically prohibited purpose of entrapping a man and out of his own effects and papers convicting him.

Earl Warren:

You may have fine minutes more Mr. Siegel.

William I. Siegel:

Thank you very much Your Honor.

And since this is so, the standard I say maybe less than probable cause.

Now it has been objected here that probable cause is an amorphous standard, something you can’t, — I mean reasonable suspicion is something which cannot be measured, it cannot be weighed but by the same token probable cause cannot be lineally measured or quantitatively weighed.

It has to be hammered out on the anvil of the experience and litigation from case-to-case until there will arise or be created or there will emerge a standard of reasonable suspicion such as this Court was able to do in the Brinegar case about probable cause.

Abe Fortas:

Well Mr. Siegel you say the constitutional standard may relax upon standards and — where the purpose of the search is not to secure evidence for the commission of the crime, but let’s assume the moment that is so, what do you say to such — what do you say in answer to the question that I asked of Mr. Duggan, that is to say if the search is justified by a purpose other than the search for evidence, that the search is justified because it is merely directed to protection of the policeman should anything that he finds which is not related to that be excluded from evidence.

William I. Siegel:

Here again Your Honor I am in disagreement with Judge Van Voorhis who would restrict the usability of it to the weapon for the protection against which the policeman is permitted to make the search.

There is an analogy I think here with an arrest based on probable cause, a search incidental to that arrest, that search is permitted for a weapon in order to safeguard the officer for the means of instrumentalities with which that crime was committed or for the fruits of that crime and yet if the search is based upon an incidental to unlawful arrest and it turns up some contraband completely independent of the fruits or instrumentalities of the crime with relation to which the search was originally made the defendant can be prosecuted for that.

Now if that is so —

Abe Fortas:

Well I think we all understand that, but you are asking us to use a standard here to do what you call relaxing a constitutional probation.

William I. Siegel:

I’m sorry.

Abe Fortas:

You’re asking us to use a standard of purpose, what was policeman’s purpose.

William I. Siegel:

I am sorry Your Honor.

Abe Fortas:

What do you sorry about?

William I. Siegel:

I am sorry I didn’t ask that.

I didn’t intend to say that.

William I. Siegel:

I am saying that this is not prohibited by the constitution because the purpose for which this search is made is not the purpose for which the Fourth Amendment was written and is not the purpose for which the exclusionary rule under the Fourth Amendment or an implementation of it was created by this Court.

Abe Fortas:

I understand that, but when you are talking about the purpose I suppose you are talking about a — what the policeman had in mind may have — may refer to objective circumstances to find out what his purpose was?

William I. Siegel:

Every question of fact which comes before a Court has to be resolved by the Court from the evidence before it and I suppose this will have to be also and I also don’t understand and this will be my last word, the abhorrence with which —

Justice Berannan:

[Inaudible]

William I. Siegel:

Well, if I may say so Your Honor, I think that’s a play on words.

If his search of the right hand pocket discloses a weapon, it is true that he can arrest for the possession of that weapon, but that doesn’t mean he can’t search the left pocket because there might be other weapon in the left pocket and while I don’t want to go to the extreme —

Justice Berannan:

[Inaudible]

William I. Siegel:

Only — if I may give you an analogy.

Under a search warrant when I’m looking for a typewriter and that’s to describe property, I can I can look in the big desk, a big drawer of the desk, they come this big, I can’t look in a little drawer.

I can look in the big drawer because a typewriter could be put in there.

I can’t look in the little drawer because a typewriter can’t be put in there.

Now while I am searching in the big drawer if I find some other contraband stolen property whatever it is I can keep it and I can prosecute for it.

If I find in the little drawer I can’t use it, I can’t prosecute for.

Now one the thing I want to say if I may —

Justice Berannan:

[Inaudible]

William I. Siegel:

Well, this depends too because he can’t have a razor blade down here I wouldn’t —

Justice Berannan:

[Inaudible]

William I. Siegel:

You Honor it will have to depend on the case, the person, the time of the day, the time of the night, past history, the knowledge of the police officer with respect to this particular suspect and so on.

Justice Berannan:

[Inaudible]

William I. Siegel:

Well, for convenience I would say no, [Laughter] it is very unlikely.

May I make this last statement Your Honor?

Earl Warren:

You mean for your convenience now?[Laughter]

William I. Siegel:

I hope for the convenience of the Court.

May I say just this one word.

There has been a generally expressed disapproval of the utilization of the police officer’s sixth sense or instinct which he gets by way of his experience.

I can’t see this.

In every other place, in every other field of human activity experience is valuable and people are supposed to benefit by the utilization of their experience.

Now why must we throw away the policemen’s experience because it maybe used improperly, that is what courts exist for and the fact that there maybe a misuse of his power, does not mean that we have to destroy the power and deprive the community of the benefits which a proper exercise of the power brings.

I said in my brief that this would be very much like Charles Lamb’s burning down the barn in order to get rose pig, there’s a much easier way to do it and I thank Your Honors for the privilege.

Earl Warren:

Very well.