United States v. Alvarez-Sanchez – Oral Argument – March 01, 1994

Media for United States v. Alvarez-Sanchez

Audio Transcription for Opinion Announcement – May 02, 1994 in United States v. Alvarez-Sanchez

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William H. Rehnquist:

We’ll hear argument now in Number 92-1812, the United States v. Pedro Alvarez-Sanchez.

Mister Estrada.

Miguel A. Estrada:

Thank you, Mr. Chief Justice, and may it please the Court:

Respondent was taken into custody on narcotics charges by California sheriffs on a Friday afternoon in August 1988 during the execution of a search warrant at his home.

Because counterfeit currency was found during that Friday search, the State authorities contacted the United States Secret Service on Monday morning.

Respondent was questioned by Secret Service agents late on Monday morning, and he admitted to knowingly possessing the counterfeit currency.

The Secret Service agents then took him into custody on a Federal counterfeiting charge.

After writing a complaint and booking respondent on that charge, the agents were informed by the Clerk of the Federal Court that there was no more room on the presentment calendar for the magistrate that day, and were instructed to bring respondent back before the magistrate on Tuesday.

That is what they did.

The district–

Anthony M. Kennedy:

And there’s nothing in the record, I take it, to indicate that the State officers deliberately delayed in calling the Federal people into the case.

Miguel A. Estrada:

–There’s nothing in the record to indicate that they were doing this any later than… any other way that they would otherwise have done, Justice Kennedy, and there is no indication at all that anyone waited over the weekend for any other reason than the fact that it was the weekend.

The district court found respondent’s confession voluntary and admitted it at his trial.

Respondent was convicted, but the Ninth Circuit reversed, holding that the confession should have been suppressed under 18 U.S.C. section 3501.

Section 3501 has three subsections that are relevant to the Ninth Circuit’s analysis of the case.

Subsection (a) provides that if the trial judge finds that if a confession was voluntarily made, she must admit it in evidence, subsection (b) provides that in determining the issue of voluntariness, the trial judge must considered all the circumstances surrounding the giving of the confession, including, among others, any delay in presentment, and subsection (c) precludes the district court from suppressing a confession solely because of delay if the confession was voluntary and was made within 6 hours of the defendant’s arrest.

The Ninth Circuit thought, or concluded, that subsection (c) required suppression of respondent’s confession.

It reasoned that the negative implication of subsection (c) is that a confession made more than 6 hours after the defendant’s arrest may be suppressed solely because of delay, even if it is voluntary and therefore mandatorily admissible under subsection (a).

William H. Rehnquist:

How did the Ninth Circuit majority deal with subsection (a)?

Miguel A. Estrada:

The Ninth Circuit indicated that it had to, in effect, carve an exception to subsection (a) in order to give meaning to the negative implication from subsection (c), and in light of its conclusion that any confession that falls outside of the 6-hour safe harbor may be suppressed because of delay, the Court then went on to hold that the confession in this case fell outside of the 6-hour safe harbor because it was given more than 6 hours after the arrest by the California authorities on Friday, rather than by the Federal authorities on Monday.

Now, in our view, the Ninth Circuit was wrong to start the 6-hour clock running with the State arrest, and in any event, the Ninth Circuit was wrong to conclude that a negative implication from subsection (c) should override an express affirmative statement in subsection (a).

Sandra Day O’Connor:

Mr. Estrada, if we were to decide that the arrest or detention that starts the time clock running is really only one involving Federal officials, then does that end the case?

We wouldn’t then have to decide the meaning of the 6-hour limitation.

Miguel A. Estrada:

That is right, Your Honor.

We can win this case either by your holding that the 6-hour clock starts ticking with the Federal detention, or by the Court holding that the negative implication of subsection (c) does not trump the affirmative statement of subsection (a).

Sandra Day O’Connor:

Now, do you concede that the language, any law enforcement agency, can indeed refer to State agencies in the event they are acting on behalf of the Federal Government–

Miguel A. Estrada:

Yes, we do, Your Honor.

Sandra Day O’Connor:

–in making a Federal arrest?

Miguel A. Estrada:

We concede that there are many circumstances in which State officers will enforce Federal law under any set of circumstances, and in circumstances when State officers are taking someone into custody for a Federal crime, for example, or are acting for the Federal agents rather than to enforce the State’s own laws.

Sandra Day O’Connor:

But the arrest that triggers it has to be one that gives rise to the need to take someone to a Federal magistrate–

Miguel A. Estrada:

That is right.

Sandra Day O’Connor:

–is that your position?

Miguel A. Estrada:

The gist of our claim, of our view in this case is that subsection (c) is directed to a period of delay between the defendant’s being taken into custody for a Federal offense and his being taken in front of a Federal magistrate under Rule 5(a).

That was the subject of this Court’s supervisory rule under the McNabb-Mallory line of cases, and is actually how subsection (c) reads.

Subsection (c) speaks of delay in bringing the defendant before a magistrate authorized to set bail for Federal offenses.

Antonin Scalia:

The trouble is that that limitation would not allow in… would not make the rule apply when the State officers are acting as the cat’s paw for the Federal officers.

That is to say, so long as it’s a genuine arrest for a State crime, and there’s no anticipation that he’s going to be drawn before a Federal magistrate, the Federal officers can, working hand-in-glove with the State officers, induce them to hold the prisoner for too long without presenting him–

Miguel A. Estrada:

I agree that the… that subsection (c) would not apply in those circumstances, and the reason for that would be that in the circumstances that you have described, Justice Scalia, the State officers would not in fact be acting as a cat’s paw for the Federal agents.

If the State officers are in fact acting to enforce their own laws rather than serving merely as the paw for the Federal agents–

Antonin Scalia:

–Well, not merely.

I mean, in my hypothetical, they are acting as the cat’s paw of the Federal officers for the purpose of getting a confession to a Federal crime–

Miguel A. Estrada:

–If–

Antonin Scalia:

–but the arrest is for a State crime.

Miguel A. Estrada:

–Well, if it is a bona fide State arrest–

Antonin Scalia:

Right.

Miguel A. Estrada:

–and there are questions of mixed motive everywhere in the law, but if in fact when you deal with it on those terms you find that there was in fact a bona fide crime, and a bona fide State arrest, I would agree with you, and I think that that is in fact a desirable result, because one of the things that we want to do as a policy matter is to encourage cooperation between law enforcement officers in States with the Federal Government.

It is only when the action is to evade, and only to evade, the requirements of Rule 5(a) that we think it is appropriate to consider the fact that the defendant has been taken into custody as the act of the Federal Government, and in making that point, we point not only to the text of subsection (c) that, of course, speaks to delay in bringing the defendant in front of a Federal judge, but also to the history and the background that preceded the statute.

Under any view of the legislative history, section 3501 was intended at least to limit and narrow the McNabb-Mallory rule.

We say overrule, but at least under any view, to limit and narrow.

There was a background of case law before this statute that said that State arrests would not be considered Federal for these purposes unless the defendant affirmatively demonstrated that the Federal agents in effect used the State as a cat’s paw to evade Rule 5, and–

Ruth Bader Ginsburg:

Can you give us an example of what, in your estimation, would be a cat’s paw case?

Miguel A. Estrada:

–Sure.

Ruth Bader Ginsburg:

It isn’t the one that Justice Scalia gave.

Miguel A. Estrada:

No.

It is a case in which there is no law enforcement interest for the State in taking the person into custody, a case like, for example, Anderson, in which there might have been some State law enforcement interest, but it’s clear from the facts that that is in fact not what is going on, or a case in which the conduct at issue is not even a crime under State law, and nonetheless the person is picked up solely at the instance of the Federal officers to allow the officers a period of time to question the defendant without complying with Rule 5(a).

So one of the examples is a case in which there is in fact no law that allows the State to do what it is doing, so there is in fact a clear inference, hopefully supported by other facts, that all that is going on is that the Federal agents are using the State to do their bidding.

William H. Rehnquist:

That would be a fairly rare situation, would it not, that the State police arrest someone when there’s no basis under State law for arresting them?

Miguel A. Estrada:

We hoped that that would be so, Mr. Chief Justice.

I think that that is the view that the Second Circuit took of your case Anderson in the Coppola case.

I mean, that is to say the Second Circuit read Coppola as being the case that I just… the Second Circuit read Anderson, excuse me, as being the case that I just posited to Justice Ginsburg and this Court affirmed, so yes, while that would be a rare circumstance, we’re not saying that this is something that does happen or indeed should happen any more frequently than that.

David H. Souter:

Mr. Estrada, I should know the answer to this question, but I don’t.

Are most State officials, or officials in most States empowered to make an arrest if they see a Federal… if they become aware of a Federal offense being committed in their presence or what-not, even though there is no State offense implicated in the action?

Miguel A. Estrada:

Yes.

Yes, and those–

David H. Souter:

So on your test, there would still be a State interest, I take it, if they made that kind of an arrest and said, you know, we’re just going to hold him for the Feds.

Miguel A. Estrada:

–Yes, but in that case the clock would start ticking from the point when they took it upon themselves solely to enforce Federal law, and we’re not asking that–

David H. Souter:

So there’s a case in which it wouldn’t be a… I guess it wouldn’t be the classic cat’s paw, but the clock would still start running at the moment of the arrest.

Miguel A. Estrada:

–Sure.

I mean, we’re not saying that the only case in which we get tagged with the conduct of the State is a case in which we have wilfully procured the State.

We do recognize that there are many circumstances in which State officers would undertake to enforce Federal law, and we would want them to do so, but if that is all they’re doing, once they have taken on the burden to enforce Federal law, they have to comply with Federal law throughout, including Rule 5(a), so that if a State officer, as we say in our brief, stops me and finds out that I have a Federal warrant out for… for my arrest, but that there’s nothing wrong with my car, or there is no other State reason to hold me, if he exercises his right to take me into custody on the basis of the fact that I have a Federal warrant, he has to comply with Federal law and take me to a judge under Rule 5(a).

We’re certainly not saying that the only circumstance that gives rise to the State conduct being tagged to us is the typical cat’s paw.

Antonin Scalia:

Does he take them… you say he takes them to a judge’s… he’s arrested… he’s a State officer.

Miguel A. Estrada:

Yes.

Antonin Scalia:

He’s arrested him for a Federal crime.

He takes him to a Federal judge?

Miguel A. Estrada:

Yes.

Yes, Justice Scalia.

If he wants to take someone into custody for a… for a Federal crime, he has to take all of the duties that come with taking somebody into custody by… for a Federal crime, and those include taking him in front of a Federal judge under Rule 5(a).

It may be that he’s ignorant of those, but if in fact he was undertaking to further the Federal interest and fails to see to it through to the end by taking him to the judge, we see nothing unfair in our being tagged with that time.

Antonin Scalia:

Does this happen, you have State officers coming before Federal magistrates regularly?

Miguel A. Estrada:

Sometimes.

Not frequently.

The text of Rule 5, if I recall, actually speaks of a person making an arrest, rather than a Federal agent making an arrest, and it contemplates a broad range of possible instances of conduct, including the old notion of a citizen’s arrest, for example.

Antonin Scalia:

What if a State officer arrests somebody for both State and Federal offenses?

Does he have to come before a State magistrate for the State offenses and a Federal magistrate for the Federal offense?

Miguel A. Estrada:

Well, I think, under our view, if he takes someone into custody for a State offense, his duty is to his employer, and he does that first, and anyone who then wants to go in and charge the person with a Federal offense would have to take… to go into the State’s domain, as it were, take him into custody, and take him to a Federal judge, but we would not consider that a Federal arrest, even though it is a mixed motive type situation.

Because if there is in fact good reason for holding the person under State law and that reason is intended to be acted on by the State officer, we haven’t yet come to the point where we think of the employees of the State as being there solely for the purpose of doing our bidding, and we understand that they have to comply with State law, and that that’s all that they should be expected to do.

John Paul Stevens:

May I ask you a question?

In your reference to Rule 5(a), it refers to an officer making an arrest under a warrant, and you say that would include a State officer, I gather.

Miguel A. Estrada:

I would think so, Justice Stevens.

John Paul Stevens:

But in the rule… in 18 U.S.C. 3501(c), when it refers to custody of any law enforcement officer, you think that means just Federal officer?

Miguel A. Estrada:

No.

We think that in subsection (c) it could be a state officer–

John Paul Stevens:

Oh, I see.

Miguel A. Estrada:

–But because of the context, only when acting to enforce Federal law.

John Paul Stevens:

I see.

Miguel A. Estrada:

Our point is that if a State officer undertakes to take someone into custody for a Federal crime, he is enforcing State law, and he falls under the terms of subsection (c) and starts the 6-hour clock running.

Of course, the prerequisite for that is that he be enforcing Federal law, because we think that even though the section doesn’t limit the identity of the officer who acts, it does limit the subject matter of what he’s acting on, and by highlighting delay, and since one can rarely be late for any sort of appointment one hasn’t made, the statute very clearly indicates that is making reference to an event that gives rise to a duty to take someone in front of a Federal judge and, in our view, that is only an arrest for a Federal crime, and as we say, that is also consistent with the historical background of the rule.

As to our second point, even if it were true that an arrest for a State offense starts the 6-our clock running, we think it would be wrong to conclude that a confession made more than 6 hours after the arrest necessarily must be suppressed.

It is not the case with safe harbors that if your ship wanders out of one of them it is automatically sunk.

Subsection (c) says that suppression is precluded if the confession is voluntary and made within 6 hours of delay… made within 6 hours of the arrest, excuse me, solely on the basis of delay, but it says nothing about any confessions, and we think that those are left to generally applicable principles of law, including subsection (a), which mandates that all voluntary confessions must be admitted.

Anthony M. Kennedy:

If a confession–

–I don’t–

–is made within 6 hours, but there is a charge of involuntariness, is time a factor that the judge may consider?

Miguel A. Estrada:

Yes.

Under subsection (b), as we read the three subsections, subsection (a) says that the sole test is voluntariness.

Subsection (b) says you may consider delay as one factor, and subsection (c) in effect, even though it is somewhat complicated, we concede, says that in determining subsection… the question under subsection (b), the court should not let delay of less than 6 hours tip the balance in favor of involuntariness.

Antonin Scalia:

Well, it really doesn’t say that.

I don’t see how (c) is a safe… maybe you can explain how (c) can be a safe harbor when it’s only made a safe harbor if the confession is voluntary.

Miguel A. Estrada:

Well–

Antonin Scalia:

And the confession isn’t voluntary if one of the problems with it is that there was too much time elapsing between arrest and arraignment.

I don’t see how you ever get to… it’s perfectly circular.

It really is.

Miguel A. Estrada:

–There is no seamless way of construing this statute, Justice Scalia, and we recognize that.

I think that there are many less charitable things that one could say about subsection (c) than what you just said, but in order to make it fit better with the balance of the statute, what we do, quite candidly, is to read subsection (c) as if it said, and it otherwise can be–

Antonin Scalia:

Or otherwise–

Miguel A. Estrada:

–Which I think is consistent with what Congress was trying to get at, and in that connection I should point out that the clause, if it is voluntary, was in the bill that came out of committee and went onto the floor, so that to the extent that every party in front of the court concedes that that bill was designed to do away with the McNabb-Mallory rule for good–

Antonin Scalia:

–Look at Justice Stevens when you say this, Mr. Estrada, would you?

Miguel A. Estrada:

–is that–

Antonin Scalia:

Don’t look at me when you’re talking about–

Miguel A. Estrada:

–Well, Justice Scalia, you asked me the last question, and I’m hoping that he won’t ask any.

[Laughter]

No, but to the extent, Justice Scalia, and Justice Stevens, that every party before the Court concedes that the bill that came out of committee was clearly intended to do away with McNabb-Mallory for good, the structural problems with the bill were already present at the time that the bill came onto the floor, and in fact, with Senator Scott’s change on the floor, it makes a little bit more sense now than it did as it came out of the committee.

Conceding that the prose of subsection (c) is less than what might be called limpid, the key in trying to get an understanding of what Congress was trying to do, we think, is to… is to understand that from the outset, the subsection that was carrying all of the water to overrule McNabb-Mallory was subsection (a) and not subsection (c).

Subsection (a)… excuse me… said, if it is voluntary, you must let it in.

Subsection (b) says, consider delay.

Subsection (c) in effect is a tool to keep judges from overvaluing or overrating delay in making the judgment in (b), or in (b)(1), and once you understand that subsection (c) was related to the McNabb-Mallory problem but was not… but that it was not itself the vehicle for overruling McNabb-Mallory, one sees what the problem that Senator Scott has with it.

As it came out onto the floor, it said, you may not consider delay as the tipping factor, or as the one factor that would make something involuntary, ever.

His point is, I can think of cases in which, if you have an extremely long delay, that factor will be the factor that will make a confession involuntary.

What we do is, we put a limit on subsection (c) to say that after a period of 6 hours, a district judge is free to consider delay as a factor, as a full factor, and maybe even as the principal factor.

Is it elegant?

No, but we do think that it makes sense out of every subsection of the statute to the extent that the statute can be made sense of.

Now… and one of the things that we point to in giving that construction to the subsection is the overriding impetus for every subsection of the statute.

If you step back and look at the statute, what the statute in effect says is, don’t suppress because of X, don’t suppress because of Y, don’t suppress because of Z, and one has to work really hard with the language of the statute and practically ignore all of the legislative history in order to get out of the statute a rule that says, suppress, and by the way, it’s mandatory, and that is our sole point as to subsection (c).

If there are no further questions, I would like to reserve the remainder of my time for rebuttal.

John Paul Stevens:

–I just want to… perhaps you did cover this with Justice O’Connor, but you… really in your cert petition you raised one question, which was the question about the State custody, as I understand it, and it is your position if we answer that question in your favor we don’t reach this rather tricky question.

Miguel A. Estrada:

That is right.

John Paul Stevens:

Yes.

Miguel A. Estrada:

Thank you, Justices.

William H. Rehnquist:

Thank you, Mr. Estrada.

Mr. Gunn.

Carlton F. Gunn:

Thank you, Mr. Chief Justice, and may it please the Court:

I will start, perhaps, by addressing the time limitation point, just because the questions were just focused on that.

I think the main problem with the Government’s argument, Your Honors, is it basically does have to insert that word that it basically suggested inserting into subsection (c).

It would have to insert the word “otherwise” in front of “voluntary” to make it have any sense.

Worse, Your Honors, it seems to me that that then creates an impossible scenario for a court to have to engage in.

Voluntariness is a case-specific inquiry.

How can you inquire into something, whether something is otherwise voluntary?

How can you take some circumstance out, and have a court inquire into whether it would have been voluntary without that circumstance?

David H. Souter:

Because you have a legal mind.

David H. Souter:

I mean, that’s what legal minds do.

Carlton F. Gunn:

But you have a legal mind, Your Honor, I think that’s focusing on the impact of certain circumstances on this defendant in that case.

Whether in fact that defendant’s will is overborne is not probable cause, where it’s what a reasonable person would have thought based on these facts.

It’s whether in fact this defendant’s will was overborne.

There is actually–

Antonin Scalia:

Well, how do you read section (c)?

What does it mean to you?

It does nothing at all, then, under your analysis, right?

Carlton F. Gunn:

–Well, no, I think it does do something, Your Honor.

There’s three aspects of the plain language that I think fairly clearly, as clearly as you can get anything out of this statute, established that it retains a limited McNabb-Mallory type rule.

One, they refer… they use the word… they talk about inadmissibility, not involuntariness.

Second, they use the word, solely because of delay.

They don’t talk about because of delay that makes a confession involuntary.

Third, Your Honor and this, I think, makes the statue more than just a negative pregnant… more than just a negative implication statue.

The “provided” paragraph refers to the time limitation contained in this subsection.

They are saying this is an affirmative limitation on something, and what they’re saying, in essence, is that this is a time limitation on the period of interrogation, which is exactly… I know the Court doesn’t want to look as carefully at the legislative history as Justice Stevens might, but that’s exactly the way Senator Scott and Senator McLelland characterized it on the floor of the Senate.

I also want to–

William H. Rehnquist:

Mr. Gunn–

Carlton F. Gunn:

–Yes, Your Honor.

William H. Rehnquist:

–you say the Government does violence to subsection (c) in its interpretation.

You certainly have to do some violence to subsection (a) to get where you’re going.

Carlton F. Gunn:

You have to read an excep… you have to read subsection (c) as a specific statute that controls over and creates an exception to the general in subsection (a).

But Your Honor, I’d ask the Court to consider, I think the Government has to concede there’s at least some exceptions to the literal language in subsection (a) anyway.

Consider the rules of evidence.

Certainly the Government I assume would concede that the confession, to be admissible, has to be relevant.

William H. Rehnquist:

Well, I don’t think 3501 was intended to cover the entire waterfront.

I think it was dealing, as I suspect you would agree with McNabb-Mallory.

Carlton F. Gunn:

Correct, but by its literal language, Your Honor, especially given the broad definition of confession in subsection (e), it does cover the waterfront any time there’s a confession, and my point is that you have to concede that its literal language is limited by the rules of evidence, for example.

Then it makes even more sense to concede that it’s limited by the language of a subsection in the very same section.

William H. Rehnquist:

Well, I think you have some difficulty with that point, when you have a statute that’s addressed to the McNabb-Mallory rule and it’s talking about admissibility for delay under various circuits.

William H. Rehnquist:

You have one categorical statement, and it does seem to me categorical, notwithstanding the fact you say there would have to be an exception, that it shall be admissible, and you’re saying that is going to be limited by what comes after.

I’m not saying that’s totally unreasonable, but you’re having to take liberties with the statute the same way the Government does.

Carlton F. Gunn:

We’re having to treat subsection (c) as a more specific statute that creates a limitation to the general in subsection (a).

I think it frankly makes more sense, Your Honor, to find a limitation within the very same statute, than it does to have to reach outside to other rules of evidence and so on, so… but you’re right, Your Honor, there is definitely a tension, albeit perhaps even an inconsistency, between subsection (a) and subsection (c), but under our interpretation, subsection (a) still has an impact and still has some meaning.

Under the Government’s interpretation, unless you insert a totally new word, (c), the phrase

“if the confession was given within 6 hours of arraignment. “

becomes totally superfluous.

William H. Rehnquist:

Would your construction require the exclusion of any statements that would have been admissible under the McNabb-Mallory doctrine?

Carlton F. Gunn:

Not as to the issue of delay versus voluntariness, Your Honor.

As to the issue of State custody, our position is no, but it depends on how you read the pre-3501 case law in this working arrangement type rule, and perhaps I can step to address that issue, because I would agree with the Government that the Court doesn’t need to reach the issue of the effective delay, if in fact the Court rules against us on the State custody being included issue.

I wanted to begin by addressing an issue that I wasn’t able to address in my brief because I didn’t read it in the Government’s opening brief, and it’s a concession they make in their reply brief that I think is very important.

They concede in their reply brief that some arrests by State officers are included, and I just wanted to point out two things about that concession.

Ruth Bader Ginsburg:

Where is the concession in the reply brief?

Carlton F. Gunn:

Your Honor, I believe it’s on page 2 of the reply brief.

It actually begins on page 1.

It’s a paragraph… the second paragraph in their reply brief.

The second sentence, they indicate,

“We have never claimed, however, that arrests by State officers cannot be arrests under section 3501(c). “

“They then go on to say, the test is whether it is. “

for a violation of Federal law,

“and they then go on to use the example of the officer who initially stops for a traffic offense and then finds a Federal warrant and arrests on that. “

Your Honor, I think that concession raises two very significant problems with the Government’s position and interpretation of this statute: 1) it’s very problematic to create that subjective state of mind type of test, and in fact somewhat inconsistent with this Court’s approach to Fourth Amendment law, though here we’re not talking about the Fourth Amendment.

Second, Your Honor, it poses all sorts of line-drawing problems, some of which might even start getting the Government close to the facts of this case.

What if the officer is arresting for both the State charge and the Federal charge?

What if the officer is arresting for a single offense on the facts that could be charged under State law or Federal law?

John Paul Stevens:

Let me just pause after your first hypothetical.

It would seem to me that your opponent said that would be a Federal arrest if it’s on a Federal charge.

Carlton F. Gunn:

Well, what I heard him say, Your Honor, and I may have heard him wrong, I heard him say if it was on both a State offense and a Federal offense that then it would be State’s.

John Paul Stevens:

Oh, I misunderstood.

Carlton F. Gunn:

But that’s not crystal clear to me that that’s the way it should be.

Carlton F. Gunn:

What if it’s for what we call a dual prosecution offense?

A common example would be bank robbery.

It could be charged either as bank robbery under 18 U.S.C. section 2113(a), or robbery under California Penal Code section 211.

William H. Rehnquist:

I would think that would be rather clear.

If a State officer is arresting for something that is both a State and a Federal crime, you’ll assume he’s arresting for the State crime.

Carlton F. Gunn:

What if the standard practice in that district and his plan is to let the FBI take the man to Federal court, and the first thing he’s going to do when he gets to the police station is call the FBI?

I mean–

William H. Rehnquist:

Well, you call those line-drawing problems, or they’re evidentiary problems.

I don’t know that it’s so difficult to draw the line.

Carlton F. Gunn:

–Well, I mean, then, the example I… he takes him to the police station.

Does it depend on whether he writes Penal Code 211 on the booking sheet, or 2113(a)?

I… it strikes me that some problems are going to arise in determining that, Your Honor.

Now, if the plain language of the statute required that result, you’d be stuck, and you’d have to interpret it as the plain language, but the plain language doesn’t require that result, Your Honor.

The plain language refers to

“arrest or other detention in the custody of any law enforcement officer. “

not a Federal law enforcement officer, not custody for a Federal offense, not arrest for a Federal offense–

Antonin Scalia:

No, but it goes on to say it shall not be inadmissible because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against laws of the United States.

Carlton F. Gunn:

–Correct, Your Honor.

Antonin Scalia:

It makes no sense, unless you’re talking about a Federal offense.

Carlton F. Gunn:

In its reply brief, the Government focuses on that word “delay”, Your Honor.

The definition… I looked up the definition of “delay” in Webster’s.

“Delay”, at least one of the definitions is “cause to occur more slowly”.

I would submit that when a Federal… a State officer, as in this case, arrests someone, plans to call the Secret Service to see if they want to prosecute the person, and then waits 48 hours to call the Secret Service, those 48 hours he waited caused the Federal arraignment to take place 48 hours more slowly, because he–

Antonin Scalia:

And that would violate this provision even if he took the individual before a State magistrate promptly?

Carlton F. Gunn:

–Well, Your Honor, then the question that arises… I think that’s a difficult question.

Antonin Scalia:

Oh, it’s not at all, not the way you interpret it.

Carlton F. Gunn:

Well, one way it poses a difficult policy problem, but I don’t think the statute necessarily demands that, Your Honor.

It depends on how you construe the word “delay”.

The statute is focused on delay that’s caused by law enforcement officers, not delay that’s caused by the court system or State court procedures, and you could not apply it in the situation where there’s a State arraignment, because the delay there would at least generally be caused by the State court’s need to have the person first and process him.

So it wouldn’t be delay that was caused by the officers, and I think you can construe this statute in context to refer to delay caused by law enforcement officers, not delay caused by the courts.

William H. Rehnquist:

What would be the policy virtue of that?

Presumably the purpose of the rule is to deter Federal officers from extended delay that might lead to putatively coerced confessions.

Carlton F. Gunn:

I think, Your Honor, that that’s not the sole purpose of the law.

I think it’s a little broader than that.

I think the purpose is to deter also State officers who are acting on behalf of or helping Federal officers either with a Federal officer’s request or without their request.

If we think about the purposes of this statute, and of course to some extent it goes back to the purposes of the McNabb-Mallory rule and the purposes some of the Congressmen talked about in the legislative history.

It seems to me the purpose is of two basic types.

One purpose is to have a bright line rule that says, we’re not going to allow confessions after this time.

Then you don’t have to inquire when a defendant says one thing happened during the 48 hours and the police say another thing.

You don’t have to inquire about how this particular defendant was affected by the delay.

Another purpose, Your Honor… another set of purposes that applies as much, frankly, to innocent suspects as guilty suspects, maybe even more, is all the interests and principles our society has in getting people to court promptly.

William H. Rehnquist:

If we go back to I guess what is called the legislative history of 5(a), it appears that it wasn’t in the interest of suspects at all, it was to prevent marshalls from piling up mileage by taking someone to a distant magistrate.

Carlton F. Gunn:

Well, Your Honor, that’s not what the legislative history of 3501 I don’t think shows 3501 was for.

The Government quotes a law review article in a footnote in its brief that says that looked like the purpose of the original arraignment rules that were construed in McNabb, but in 3501, Your Honor, what you have is you have some Congressman–

William H. Rehnquist:

Well.

I thought we were talking about Rule 5(a).

Carlton F. Gunn:

–I’m really focusing more on 18 U.S.C. 3501, Your Honor.

William H. Rehnquist:

And whereabouts is the language that we’re talking about, about taking before a Federal officer?

Carlton F. Gunn:

Your Honor, in 3501(c) the language I’ve been focusing on begins on the fifth line, or the end of the fourth line.

It talks about

“arrest or other detention in the custody of any law enforcement officer or law enforcement agency shall not be inadmissible solely– “

William H. Rehnquist:

Where is that in one of the briefs?

Carlton F. Gunn:

–I’m sorry, Your Honor.

Page 3 of the Government’s brief.

William H. Rehnquist:

Thank you.

Carlton F. Gunn:

That is the statute.

I apologize.

It talks about arrest or other detention in the custody of any law enforcement officer or agency, and then it talks about because of delay in bringing such person before a magistrate.

I think the words we need to focus on are “any law enforcement officer”, and “delay in bringing”.

What I’m suggesting is–

Sandra Day O’Connor:

Well, I would think you’d have to focus on what it is that triggers the operation of the statute, to wit, an arrest for an offense that requires presentation–

Carlton F. Gunn:

–You’re right.

I think, Your Honor–

Sandra Day O’Connor:

–before the magistrate.

Carlton F. Gunn:

–it’s the phrase

“arrest or other detention in the custody of any law enforcement officer or agency. “

I think you’re right, Your Honor.

But those purposes, the purposes… the purposes underlying this statute of getting people to court quickly and the purposes that were spoken about by the Congressmen during the debate, you don’t have any contact with family or friends while you’re detained incommunicado before going to court.

You don’t have a chance to get bail.

You don’t have a chance to have a magistrate consider whether there’s probable cause.

You don’t have counsel to start checking into the case for you.

All those purposes, all those goals are advanced just as much by a statute that encourages State officers who are helping Federal officers to contact the Federal officers quickly, so I think in terms of the purposes and policies underlying this statute, Your Honor, that those are advanced by focusing on State officers as well as Federal officers, and the much more workable rule, the much better in context reading, I would submit, is to focus on the type of arraignments, or the type of charge.

William H. Rehnquist:

Then how would your interpretation of the rule resolve the question where the State officer arrests on a State law bankrupt… bank robbery charge, excuse me, but there’s also a possible Federal bankruptcy charge that could be brought… Federal bank robbery charge.

Carlton F. Gunn:

I think, Your Honor, in that case it would depend on whether he’s arraigned on the bank… Federal bank robbery charge, or whether he’s arraigned on the State robbery charge.

William H. Rehnquist:

Well, what if he’s arraigned on both of them.

Carlton F. Gunn:

Well, then, Your Honor, I think you get a difficult question, and it depends on how you construe the word “delay”.

William H. Rehnquist:

So your solution really doesn’t avoid the evidentiary problems or the line drawing, does it?

Carlton F. Gunn:

I think it does, Your Honor, because–

William H. Rehnquist:

Oh, I thought you just said that this was a difficult question under your solution.

Carlton F. Gunn:

–It’s a difficult question of interpreting the statute, not a difficult question on the facts.

The question then becomes one for this Court, and frankly you don’t need to reach it on the facts of this case, because there was no State arraignment, and the State officers gave priority to the Federal interest, but if you did want to reach it to have a complete interpretation of the statute, it would turn on whether you interpret the word “delay” in this statute as including delay caused only by law enforcement officers, or whether you also include delay caused by State court procedures in the State court system.

William H. Rehnquist:

Well, you may have a statutory argument on your side, but I certainly don’t think that your solution commends itself by reason of its simplicity.

Carlton F. Gunn:

Well, Your Honor, there’s three possible situations that would arise factually.

One would be where there’s only a State arraignment, one would be where there’s only a Federal arraignment, and one would be where there’s both.

Under my approach, if there’s only a Federal arraignment the statute applies from the time of State arrest.

If there’s only a State arraignment, the statute does not apply.

If there’s both, then this Court… it’s not presented by the facts of this case, but this Court would have to decide how it interprets delay.

William H. Rehnquist:

Well, what if the State officers detain someone… arrest someone, detain him for 12 hours, 16, and decide there isn’t enough evidence here to bring him in on the State charge because one element of the State crime we can’t prove, but it’s not so with the Federal crime, so let’s get the Feds over here?

Now, the would have… he wouldn’t have been arraigned.

Carlton F. Gunn:

Correct.

William H. Rehnquist:

Under your rule, State custody there is charged against the Federal?

Carlton F. Gunn:

I would say so, Your Honor.

You might have… you might have a situation arise on rare occasions where the State officers could establish that they never even envisioned the possibility of Federal charges until some place down the road, and then that–

William H. Rehnquist:

So they would be interrogated as to whether they envisioned the Federal charges or not?

Carlton F. Gunn:

–Maybe, but I think that would arise in only very rare occasions, Your Honor.

I mean, most of the time, as in this case, the officers who arrested Mr. Alvarez knew about the State crime, they knew about the Federal crime at the same time, the detective in charge of the investigation in this case… and frankly, it depends, I suppose on how you construe “working arrangement”, but frankly, I would say under any construction of working arrangements that’s reasonable under this statute, it should apply here, maybe even under the Government’s concession.

The officers here arrest, they know about a State offense, they know about a Federal offense.

They plan on calling the Secret Service.

That’s their department policy.

They call the Secret Service.

They let the Secret Service come.

They are acting only as secondary law enforcement authorities, because they’re going to let the Secret Service take Mr. Alvarez if the Secret Service wants to.

The Secret Service wants to.

The Secret Service takes him.

Anthony M. Kennedy:

But they booked the defendant on the State charge only.

Carlton F. Gunn:

The record… their… the only record… well–

Anthony M. Kennedy:

Or am I incorrect about that?

Carlton F. Gunn:

–That’s what the detective says in his declaration.

That’s what the district court said in its initial facts.

The issue wasn’t really litigated in the district court below in this case because under the controlling Ninth Circuit law, it didn’t matter, so I don’t… you certainly don’t have a factual finding on any issue that there was any reason to contest.

Anthony M. Kennedy:

Is there a booking sheet or something in the appendix there?

Carlton F. Gunn:

I don’t believe so, Your Honor.

There’s not in the joint appendix, and I don’t believe there was ever one put into the record below.

But Your Honor, then you get into a really difficult line-drawing situation that arises if the Government… does whether or not he’s arrested for a Federal offense depend on whether they write that charge on a booking sheet as opposed to what they did here, where they decided to give–

Anthony M. Kennedy:

Well, I assume any officer knows why he is holding a defendant, a suspect.

Carlton F. Gunn:

–Well, he may be–

Anthony M. Kennedy:

He’s being held on a charge.

Carlton F. Gunn:

–Correct, but he may be holding a suspect, Your Honor, only because that’s their way of being able to hold him until the Secret Service can come and decide if they want to take him, which was in fact what the detective in charge said his plan and intent was in this case.

One thing I did want to make the point to this Court about is, if this Court decides that there is just a working arrangement… if this Court decides there is a working arrangement requirement which was not a requirement under the Ninth Circuit case law on which this case was litigated in the district court, I would submit the matter has to at least be remanded for us to inquire into what this detective was thinking, and what his intent was.

You do have him saying basically in his declaration that he was not going to pursue the State charges unless the Federal authorities weren’t interested, and I would submit that that at least should fit within the context of this statute, even if you’re going to read the words,

Carlton F. Gunn:

“any law enforcement officer and delay. “

in context.

John Paul Stevens:

May I give you a hypothetical and see what… what if a State officer arrests a man in possession of a stolen car, and after he’s in State custody they plan to prosecute him for the State offense.

They find the car has crossed the State line, so they call in a Federal officer and say you can question him if you want, and the Federal officer questions him, gets a confession, but in the meantime the State decides to prosecute and they keep him in jail for 6 or 8 months, and then at the expiration of that period the Federal Government decides it will also prosecute for the Federal offense.

Is the Federal confession admissible?

Carlton F. Gunn:

Your Honor, I think that’s a difficult question that I was suggesting to Justice Rehnquist this Court could resolve but doesn’t have to on the facts of this case.

There’s two ways to approach that question, and I think we prevail under either way of approaching it, Your Honor, and it depends on how you construe the word “delay” in the statute.

A reasonable construction would be to construe it only as delay caused by law enforcement officers, and I think in the hypothetical Your Honor just suggested, the delay would really be a result of the State court system and State authorities wanting to and having an interest in prosecuting the defendant.

John Paul Stevens:

Plus the decision of the Federal Government not to make up its mind about what to do with him until… they’ve no hurry on it and no pressure.

He’s just going to spend the next 6 months in State custody anyway, so they just don’t have to make a decision.

Carlton F. Gunn:

Correct, but at least in part the delay is from the State court system–

John Paul Stevens:

Yes.

Carlton F. Gunn:

–and State prosecutors deciding to pursue the charges and needing to have the defendant there for the trial, et cetera, and once he’s been arraigned in State court, then he’s no longer in a state of nonarraigned custody, so to speak, which–

John Paul Stevens:

But do you think delay in bringing such a person before a magistrate or other officer can include delay in bringing him before the State magistrate, is that it?

In other words, they were prompt, and did everything promptly, but just took a long time to get to the Federal system.

I’m not quite clear on… I’m not sure I understand your position.

Carlton F. Gunn:

–All right, Your Honor.

I think what I’m suggesting is the… in your hypothetical, I would submit that at least one appropriate reading of the statute… I mean, one could also argue that delay means delay, and it doesn’t matter, and it applies.

You don’t need to decide that here.

But the other approach, if you’re worried about the policy implications of that, is to construe… I think the delay in that case could properly be considered to be, or attributed as delay due to the State courts and State prosecution situation, and then the delay would not be delay attributable to law enforcement officers, and I think you can read this statute in context to focus on delay attributable to law enforcement officers, and that’s certainly the overriding purpose, is delay that they caused, not delay that the courts caused by their legitimate procedures of having a trial and so on and so forth.

John Paul Stevens:

So you’re adding some words to the statute, too.

Carlton F. Gunn:

Well, Your Honor, I don’t think there’s any way to take this–

John Paul Stevens:

We don’t know what delay means, is one part of the problem.

Carlton F. Gunn:

–To… I mean, the easiest way, the plain language approach, Your Honor, would be to say, that’s delay, and the statute prohibits… remember the costs here are not that great.

All you’re saying are, the officers, if they don’t get to him within 6 hours, have to arraign him first.

They can still interview him afterwards.

Now, the Government may come back and respond and say, well, his attorney won’t let him talk, but if his attorney won’t let him talk, then that’s something our society as a general rule respects.

So the cost of this statute applies.

There’s some great benefits in terms of the interest in prompt arraignment that I’ve described, and in terms of having a bright line rule.

There’s… the costs are relatively minimal.

Carlton F. Gunn:

The costs are simply, you have to arraign someone before you interview them.

Frankly, Your Honor, there’s also a concern, if you draw this line between State and Federal custody, or custody for a Federal offense, whatever that means, you create an amazing way of officers evading this statute, even when there’s not a socalled working arrangement.

For example, the State officers in this case had a standard policy of contacting Federal officials when counterfeit money is found, but that’s not a working arrangement, under the Government’s version.

I went back and read the transcript, Your Honor, of the testimony of the Secret Service agent in this case.

I believe it’s in the Joint Appendix at page 26.

I’ve got that page wrong, Your Honor.

William H. Rehnquist:

Did the Ninth Circuit rely on that at all?

Carlton F. Gunn:

No, Your Honor.

The Ninth Circuit just relied on longstanding Ninth Circuit case law that said State custody is included, and I’ve looked back in the history of the statute for that, and I haven’t found any case that really analyzes the issue extremely carefully.

Similarly, the cases the Government cites really don’t analyze the issue very carefully, either.

But what the Secret Service agent, Your Honor, did testify to in this case that I wanted to bring to this Court’s attention, and it raises another problem of evasion, is, he said, 26.

He testified that when a person is taken into custody by an outside agency, meaning not the Secret Service, that an agent is sent to the particular agency where they meet with investigators and discuss the case with them, and then he testified,

“In this case, as in all cases, I then interviewed the suspect in this case. “

It sounds to me what this agent is saying is, he’s developed a policy that always evades 3501(c).

He does the interview before he takes the person into custody.

Suppose he had gotten a call from the law enforcement officer, the State officer who said, we’ve got to arraign this man by Tuesday, and we’ve got him in custody for counterfeiting, and he said, and he thought to himself, well, he might be more likely to talk to me if he’s sat in jail 24 hours longer.

I’ll go over Tuesday morning.

Under the Government’s interpretation of the statute, 3501(c) doesn’t apply, and you create… by construing the statute to eliminate State custody, you create a situation where that sort of thing can happen, and I think that’s more damaging and more something the drafters of this statute wanted to avoid, than just someone having to go to court in some cases and arraign a person more promptly and interview them afterwards.

John Paul Stevens:

Isn’t it true, though, that there may be a fair number of cases in which a person is in State custody and there may be something like counterfeit money or possession of a weapon or something that might justify a Federal prosecution but also might not, in which it would be reasonable to say, well, the FBI or Treasury ought to go over and interview the fellow, take a statement from him, and then decide what to do without having done the interview.

Under your view, he must immediately charge him on the Federal offense and not charge him at all, assuming he’s not going to repeat his statement later.

Carlton F. Gunn:

And assuming you… yes, assuming you’d want to interview him before arraignment.

The other option, though, is to wait for the State proceedings to take their course, to wait for–

John Paul Stevens:

Normally you’d catch someone like… I mean, I can understand a routine procedure which would involve a prompt interview to get out the facts, whatever the Federal interest is, and not necessarily have an overriding interest in immediate prosecution.

It’s a tricky problem.

Carlton F. Gunn:

–It is, Your Honor, but the statute… what it does is, it gives the State officers an incentive to avoid that situation by calling the Federal officers promptly.

You have the same situation arise, Your Honor, if, for example, the Drug Enforcement Administration arrested on drug charges and found counterfeit money, and they don’t deal with counterfeit money, so they call the Secret Service.

The Secret Service might end up being… losing the opportunity to interrogate if the DEA was negligent or lax in contacting them promptly, but that’s an arrest by a Federal agency, and I would think 3501(c) even under the Government’s interpretation would apply there, so you’re always going to have that situation where you want a statute that encourages the initial arresting officers, if they’re going to pass the investigation on to someone else, to call those people that they’re going to pass it on to promptly.

Ruth Bader Ginsburg:

So you say the primary addressee of this 310… whatever it is, is really the State officer–

Carlton F. Gunn:

The primary–

Ruth Bader Ginsburg:

–and might not be–

Carlton F. Gunn:

–I’m sorry.

Ruth Bader Ginsburg:

–What you’re saying is that this… your reading of the statute puts pressure on the State officer to contact the Federal officer promptly, and yet this is a code directed to Federal officers, not State officers.

Carlton F. Gunn:

It’s a code directed I think, Your Honor, to the Federal courts, and the way Federal courts are to use evidence in their courts.

I think it’s arrested to… it’s directed to Federal officers, and, I would submit, at the very least State officers who are acting on behalf of Federal officers even when the Federal officers haven’t specifically requested that, which is what we have here.

William H. Rehnquist:

Thank you, Mr. Gunn.

Carlton F. Gunn:

Thank you, Your Honor.

William H. Rehnquist:

Mr. Estrada, you have 4 minutes remaining.

Miguel A. Estrada:

Thank you, Mr. Chief Justice.

Only a couple of points.

First, the concession that counsel read in our reply brief on the merits was made also in our reply brief at the cert stage, and we merely repeated it in our reply brief on the merits because he made the same argument in his brief on the merits that he made in his opposition.

At page 1 through 2 of our reply brief on the cert stage, we deal with his argument of any law enforcement officer with the following:

“That claim, however, is irrelevant to our submission. “

“We do not content that arrests by State officers cannot qualify under section 3501(c). “

“Our contention, instead, is that the arrest, whether by Federal or State officers, must be for a violation of Federal law. “

“Only such an arrest can sensibly be viewed as imposing upon the arresting officer the duty to bring such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States. “

That is from our reply brief at the petition stage.

Our second point is that the basis for a person having been taken into custody is often litigated in State and Federal courts, because claims that the arrest was made without probable cause are a means for seeking the suppression of physical evidence seized at the time the person was taken into custody, and as a result of that, as a matter of routine in Federal court, officers, State and Federal, are called on to explain what the basis for their conduct was at the time when it was taken, i.e., what law they thought was… what law they thought there was probable cause to believe was being violated.

Unless the Court has any other questions, we will rest on our briefs.

William H. Rehnquist:

Thank you, Mr. Estrada.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.