United States v. Salvucci – Oral Argument – March 26, 1980 (Part 2)

Media for United States v. Salvucci

Audio Transcription for Oral Argument – March 26, 1980 (Part 1) in United States v. Salvucci

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Warren E. Burger:

Mr. McBride, you may pick up where you left off.

John C. McBride:

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

Before the luncheon recess, I was addressing myself to the cases of Rakas, Simmons and Brown.

I submit most respectfully that those three cases do not undercut Jones v. United States.

Jones is viable now.

Those cases, especially the Rakas case is limited to its facts.

William H. Rehnquist:

Why do you think then that Rakas expressly reserved the question as to whether Jones was still good law?

John C. McBride:

Because in that case, Your Honor, the limitation of the facts, namely the defendants being arrested for the crime of armed robbery.

The footnote in the opinion reserved decision on that because of the different array of decisions in the federal circuits concerning the viability of Jones.

And I think this case gives this Court the power to once again reaffirm Jones.

William H. Rehnquist:

Or to overrule it.

John C. McBride:

I agree wholeheartedly, Your Honor, but the point that has not been raised or has been raised but not directly answered by my brother is the issue of the prosecutorial self-contradiction.

In this particular case, the government would seem to have the best of both worlds.

At one point in time, they are saying that defendant Zackular does not have standing to attack the validity of the search because he was not in possession or had no reasonable expectation of privacy at his mother’s house; and on the other hand they are saying — and contradictory, just as Justice Frankfurter had pointed out in Jones, that on the other hand he clearly had possession enough to find him guilty before a jury beyond a reasonable doubt.

William H. Rehnquist:

Well, what is your answer to Justice White’s question to your colleague that the defendant is also talking out of both sides of his mouth when he asserts possession for purposes of a suppression motion, whether it be the substantive Fourth Amendment issue or standing query, and then enters a plea of not guilty, which means a general denial to all of the allegations?

John C. McBride:

Automatic standing protects the defendant, Your Honor.

William H. Rehnquist:

Well, why should it?

John C. McBride:

The answer to your question is the defendant, especially my defendant, Mr. Zackular, did not testify at the motion to suppress hearing because I felt at the time, in reliance upon Jones, that we had automatic standing to assert a violation of our rights.

I did not want Mr. Zackular to make a statement at the motion to suppress hearing, full well knowing that under a Simmons context it couldn’t be used against him substantively on the issue of guilt or innocence but in light of Jones we were constricted at that time by a search pursuant to a warrant that was governed by the four corners of the affidavit in the search warrant at that time, and in light of Jones I felt strongly that my client should absolutely exercise his right to remain silent and not say anything because he was given the benefit of the automatic standing rule enunciated by Judge Frankfurter in Jones.

In terms of speaking out of both sides of his mouth, if you advocate the prosecutor’s position, in answer to your question, Your Honor, then the prosecutor would have my client get on the witness stand and testify yes, I lived with my mother, or yes I had some type of proprietary or possessory interest in the house in Melrose where the checks were found.

Clearly, if he testified at trial, he has to testify consistently with this.

William H. Rehnquist:

Well, your client doesn’t have to testify at all at trial, as I understood the response to Mr. Justice White’s question.

Simply by pleading not guilty, he puts in issue, that is he denies the allegation of possession.

John C. McBride:

But he has got the right to testify if he so elects, Your Honor, and —

William H. Rehnquist:

Exactly, and then that is his problem, not the government’s.

John C. McBride:

But the dilemma that is posed against him at this particular juncture is he, if you advocate the government’s position, would have to get on the witness stand at the motion to suppress hearing and purge himself, yes, I owned those particular pieces of mail.

William H. Rehnquist:

Well, there are lots of dilemmas in criminal trials that defendants face.

John C. McBride:

An automatic standing solves the dilemma, Your Honor.

What it does is it allows the defendant to remain silent and it allows the defendant to assert a violation of a Fourth Amendment right by remaining silent and gaining the benefit of Jones and the Fourth Amendment.

William H. Rehnquist:

Do you think it helps the jury or judge to determine the truth of the charges brought against the defendant?

John C. McBride:

Well, that is not the purpose of a motion to suppress, to determine the truth.

The judge at this juncture doesn’t determine truth, as you well know, Your Honor.

He determines whether or not the exclusionary rule has been violated.

William H. Rehnquist:

Do you think the automatic standing rule helps in the long run a jury or fact-finder to determine the truth of the charges brought?

John C. McBride:

It may not help a jury but the automatic standing rule is not for the jury to assess.

It is up to the judge at pretrial to dispose of an issue and determine whether the exclusionary rule has been violated.

John Paul Stevens:

But the automatic standing rule does permit the defendant to take advantage of a violation of somebody else’s Fourth Amendment rights.

John C. McBride:

I agree, Your Honor, especially in a case like this.

John Paul Stevens:

Yes, and the only reason that was ever given for it is that the evidence that he might give at the suppression hearing might be used against him at the trial.

That is the only meaningful reason it has ever been used, ever been given.

John C. McBride:

Well, Judge Frankfurter said, Your Honor, that the defendant isn’t given the unjust advantage at that time, the prosecution was given the unjust advantage by getting the best of both worlds and they should not have the benefit of the best of both worlds.

John Paul Stevens:

That may be, but the reason that the defendant could rely on the violation of somebody else’s rights is that they didn’t want to put him to the trouble of claiming his own right, because it could be used against him at the trial.

If he claimed that he himself had an interest in the premises or he himself had an interest in the goods seized, that might be used against him at the trial and he shouldn’t be put in that dilemma.

Isn’t that the reason it was done?

John C. McBride:

That’s correct, Your Honor, but we are not in an Alderman-type situation in this particular case.

John Paul Stevens:

How do you know?

John C. McBride:

Because the defendant is charged with a possessory crime here, unlike the situation in Alderman where the defendant —

John Paul Stevens:

The automatic standing rule prevents you from knowing whether you are in an Alderman situation or not.

You just don’t even inquire.

Whosever rights were violate, the defendant gets the advantage of it by the automatic standing rule.

That’s the purpose of it, isn’t it?

John C. McBride:

Clearly.

Warren E. Burger:

I am a little puzzled by this “who guessed the special advantage.”

Isn’t a motion to suppress evidence inherently a motion to suppress the truth?

Isn’t that the very function of it?

John C. McBride:

The very function, I submit, of a motion to suppress is to insure and make sure that the police do not violate constitutional rights.

Warren E. Burger:

That is not what I was addressing myself to.

The operational function of it is to suppress some of the truth that is likely to be or may be used against him.

It isn’t necessarily all of the truth, but it is some truth that he does not, the defendant does not want the jury to know about, otherwise he wouldn’t move to suppress, would he?

John C. McBride:

Mr. Chief Justice, I have trouble with your question because you say that a motion to suppress is seeking to suppress the truth.

John C. McBride:

I don’t say for a minute that a motion to suppress is used to suppress the truth.

I say that it is being used to suppress constitutional violations of the defendant’s Fourth Amendment rights.

William H. Rehnquist:

But the purpose of it is to prevent the evidence from being adduced at trial, so presumably you wouldn’t do it unless you thought the evidence was relevant and material and probative.

John C. McBride:

It certainly could be relevant and material, in this case especially, since there were fingerprints found, latent fingerprints found on the checks that were discovered at the mother’s house.

It certainly could be probative of the defendant’s guilt or innocence, but that is for a jury to assess, not a judge at a pretrial motion to suppress, Your Honor, which —

Warren E. Burger:

The judge doesn’t make any decision at the pretrial except whether it will or will not be admitted in evidence.

John C. McBride:

Clearly.

Warren E. Burger:

He isn’t making any judgment about the case, is he?

John C. McBride:

He is not making a judgment about the case.

In this case he is deciding that the government does not have any evidence to use against the defendant because the only evidence that the state police had at that time were the checks taken from Zackular’s mother’s house —

Warren E. Burger:

How many checks were there altogether?

John C. McBride:

There were a multitude of checks, Your Honor, some —

Warren E. Burger:

Several hundred?

John C. McBride:

Yes, several hundred, I believe, and there were some that had latent fingerprints of the defendant on the checks, but Mr. Zackular’s mother was arrested also, and I submit that clearly Judge Garrity was correct at the motion stage in ruling that, number one, the search warrant was invalid, and there is no question about that; and, number two, that the defendants, Mr. Zackular and Mr. Salvucci, had standing to assert a violation of their Fourth Amendment rights.

It may have been done vicariously.

The search may have violated Mrs. Zackular’s rights to her reasonable expectation of privacy, but the very nature of the charge, i.e., unlawful possession of checks stolen from the mail, most respectfully confers automatic standing on the defendants to assert a violation of his motion to suppress.

Byron R. White:

May I ask you, in a case like this, how does a motion to suppress proceed?

John C. McBride:

Well, when we were up before Judge Garrity in Boston, Your Honor, the judge was bound to —

Byron R. White:

You made the motion to suppress?

John C. McBride:

Yes, sir.

Byron R. White:

Then what happened?

John C. McBride:

And we went before Judge Garrity and the judge was bound by the four corners of the affidavit.

At the very motion to suppress, nothing was brought up concerning the defendant’s standing to assert a violation of the motion to suppress.

There was argument made —

Byron R. White:

Did the defendant ever take the stand at that —

John C. McBride:

No, sir.

The prosecutor and the defendants simply argued on the basis of the affidavit and produced the affiant, Trooper Bellanti, who testified to certain facts, but basically Judge Garrity found, as you can see from a reading of the appendix, that the affidavit did not contain probable cause.

And only after, at a later did, approximately three to four weeks later did the government —

Byron R. White:

Do you think that Jones, if the Jones case had involved facts like these, the Court would ever have decided it the way it did, where the defendant wasn’t going to say a thing or ever admit a thing, just on the four corners of a — there wouldn’t have been any occasion to say anything like what they said in Jones, would there?

John C. McBride:

Well, that is because Jones was limited to its expressed facts, namely Mr. Jones being present —

Byron R. White:

I know, but the danger that Jones averted to was something the defendant might say at the suppression hearing that might be used against him at the trial.

Here you make the motion and say the warrant was deficient.

He doesn’t testify, and nothing can be used against him at the trial.

Do you think Jones would ever have set automatic standing in a situation like that?

I would have thought they would have said this affidavit-warrant doesn’t relate to any property that — it relates to your mother’s property or your brother’s property or your friend’s property.

John C. McBride:

Again, Your Honor, my answer to that is Jones was limited to the case where a person on the premises, as long as he was reasonably on the premises, had a right to assert a motion to suppress.

Rakas, of course, the test in Rakas is whether you had a legitimate expectation of privacy in that particular case as passengers in an automobile.

Here we are in a different position because the crime charged is a different crime.

It is possession, Your Honor.

Again, the vice that this Court can protect against is the vice of prosecutorial self-contradiction, Your Honor, and I submit that to overturn Jones would be to give the government the best of both worlds in saying on the one hand that Mr. Zackular has no standing because he has not shown any possessory interest, and on the other hand to say that he is guilty of unlawful possession of checks found at his mother’s house.

John Paul Stevens:

Mr. McBride, how do you respond to the alternative argument the government makes that standing as we use the term doesn’t really turn on possession at all, it turns on invasion of a privacy area rather than even if you had ownership of the article you would not have standing, according to their alternative argument, to object to an invasion of the home in which you have no privacy interest.

John C. McBride:

Well, I submit — I disagree with that one-hundred percent.

John Paul Stevens:

Is there any case holding that ownership of an item is sufficient to give you standing to object to a search of premises in which you have no privacy interest?

John C. McBride:

Well —

John Paul Stevens:

If ownership isn’t enough, then it would seem to follow a fortiori that possession wouldn’t be enough.

John C. McBride:

The case that comes to mind for me, Your Honor, is United States v. Chadwick, where —

John Paul Stevens:

He had a privacy interest in the trunk, rather, the container in which the goods were found.

John C. McBride:

There is another case that I can’t put my hand on now, Your Honor, where a fellow was in a cab and had a suitcase with drugs in it —

John Paul Stevens:

Arkansas v. Sanders, yes.

John C. McBride:

Arkansas v. Sanders — and he could —

John Paul Stevens:

You see, those don’t reach my question which is you have either a possessory or a legal or any kind of an interest in the item seized but no claim to privacy in the location in which the item happened to be found by the police, and I don’t know of any case that really squarely meets that issue.

Byron R. White:

There are plenty of cases that say that if the officers are lawfully where they are when they find the evidence of crime, they can seize it.

What if they had found whatever was seized here in the street?

John Paul Stevens:

My issue is whether they are unlawfully there.

There aren’t any on that point, as far as I know.

Byron R. White:

I think there are cases that say that if the officers are lawfully where they are supposed to be, they can — for example, if they are lawfully on the premises, they can seize items that they see in plain sight, even though they are not listed in the warrant.

John C. McBride:

I agree, Your Honor, as long as they are evidence of contraband or crime, and possibly under Warden v. Hayden mere evidence of a crime, but this isn’t that type of case.

Byron R. White:

And certainly here if the warrant had been good, the fact that you had an interest, even if you owned the property that was seized, you couldn’t have objected to it, to the seizure?

John C. McBride:

If Mr. Zackular owned the house —

Byron R. White:

No, no, say if the warrant was good, say the warrant was good, it was a good warrant, nothing wrong with the warrant.

Byron R. White:

The officers were lawfully in the house and lawfully making a search and they ran across this evidence.

John C. McBride:

I would still submit, Your Honor, I have grounds to submit a motion to suppress —

Byron R. White:

Well, you would lose it, that’s all.

John C. McBride:

— based on the very nature of the charge.

John Paul Stevens:

The question is whether if the warrant is bad, would you have a standing to attack the warrant, that is —

John C. McBride:

My answer is in the affirmative.

I certainly do have standing because —

John Paul Stevens:

My only point is I don’t know of a case directly in point on the proposition.

John C. McBride:

Well, I can’t give you a case on point other than the previous stare decisis of Jones v. United States, Your Honor, which I am asking the Court to uphold.

William H. Rehnquist:

What Fourth Amendment right of your client was violated, if the warrant was bad?

John C. McBride:

The Fourth Amendment right is his right under Jones —

William H. Rehnquist:

Don’t talk about Jones, talk about the Fourth Amendment.

What Fourth Amendment right of your client was violated if the warrant was bad?

John C. McBride:

Under Rakas, Your Honor, he clearly would have no legitimate expectation of privacy in his mother’s home, and that is the test that was advocated in Rakas v. Illinois.

William H. Rehnquist:

Well, it was not only advocated, it was a Court opinion.

John C. McBride:

I’m sorry, Your Honor, but the Fourth Amendment right is the right of a person like Mr. Zackular to be free from unreasonable searches and seizures in a crime where he is charged with possession, which is the particular case here.

Byron R. White:

Well, Jones doesn’t rest upon any notion that the defendant’s Fourth Amendment rights were violated.

Concededly, they might be somebody else’s, but he nevertheless has standing to get suppression based on the violation of somebody else’s Fourth Amendment rights in order to avoid a dilemma, under Jones.

John C. McBride:

Only because he was lawfully on the premises and had access to the premises at that particular time, Your Honor.

Byron R. White:

Well, that is another branch of Jones.

John C. McBride:

I agree.

Byron R. White:

That is another branch of Jones.

John C. McBride:

The fact that still sticks out in Jones is the protection against the prosecutorial self-contradiction and with that argument in mind I would ask this Court to affirm the ruling on the motion to suppress by Judge Garrity and to affirm the opinion of the First Circuit Court of Appeals in Boston.

Thank you.

Warren E. Burger:

Mr. Levy, do you have anything further?

Mark Irving Levy:

Just a couple of points, Mr. Chief Justice.

First, we think that the Fourth Amendment situation has changed since Jones.

At that time, the doctrine of standing and the now settled limitation of standing to defendants whose personal Fourth Amendment rights were violated was not yet fully developed by the Court.

Secondly, the privacy formulation of Fourth Amendment rights exemplified in later decisions, such as Katz, Alderman and Rakas, was —

Byron R. White:

Could I ask you, suppose in this case where the warrant was presented, the motion was made to suppress, the warrant was presented and the government said to the judge, “Judge, we have evidence to show you that this defendant had no interest whatsoever in this house,” and you put on evidence to show absolutely that he had no interest in the house.

Byron R. White:

He wasn’t a guest, he didn’t own it, had no property interest — why should there be automatic standing?

Mark Irving Levy:

We don’t believe that there should be, Your Honor.

Byron R. White:

I know, but under Jones would there be?

Mark Irving Levy:

I believe so, as long as the defendant were simply charged with the possessory offense, where possession was charged at the time of the search, then there would be automatic standing under Jones.

Byron R. White:

On account of how the government might want to say, well, he made a motion to suppress which in itself is an assertion of property interest?

Mark Irving Levy:

Well, I think the more substantial reasoning of Jones was the self-incrimination dilemma as it has come to be called, and that was eliminated in Simmons.

Warren E. Burger:

Where he does not testify as here?

He did not testify at the suppression hearing, did he?

Mark Irving Levy:

No, he did not.

Warren E. Burger:

Then there wasn’t any possibility of self-incrimination, compelled self-incrimination.

Mark Irving Levy:

That’s correct.

Warren E. Burger:

He wasn’t compelled to assert the ownership, the automatic standing had taken the place of that.

Mark Irving Levy:

That’s correct.

Warren E. Burger:

The only reason for the automatic standing rule was to protect the defendant so that he could assert the ownership for purposes of suppression without jeopardizing his — without incriminating himself by having that very testimony thrown in his face before the jury.

Wasn’t that it?

Mark Irving Levy:

That was one of the rationales relied on in Jones, that’s right.

Warren E. Burger:

Isn’t that the basic rationale?

Mark Irving Levy:

We believe it is.

John Paul Stevens:

What did the motion say in this case to suppress?

Mark Irving Levy:

The motion as I recall was very brief and simply alleged that the warrant was invalid on its face.

John Paul Stevens:

Of course, the motion itself against our ordinary Fourth Amendment cases is in itself an assertion that I am entitled to suppress this evidence.

Mark Irving Levy:

I think that would be inherent as part of the filing of a motion.

Warren E. Burger:

But that assertion can’t be used, even that limited assertion can’t be used against him at trial.

Mark Irving Levy:

Not as part of the prosecution’s direct case on the issue of guilt or innocence, that is the holding in —

Warren E. Burger:

Under Harris and the others it could be used to impeach him perhaps.

Mark Irving Levy:

We believe that is correct, but even if that it is correct it does not reimpose the self-incrimination dilemma that was of concern to the Court in Jones.

I also note that at the time —

William J. Brennan, Jr.:

Mr. Levy, may I ask you a question.

We’ve talked a lot about Rakas, in your view is your position consistent with the position taken by the dissenters in Rakas?

Mark Irving Levy:

I believe it is.

Mark Irving Levy:

I think there was no disagreement on the Court about the test to be applied.

William J. Brennan, Jr.:

Because the dissenters placed stress on the privacy aspect, the expectation of privacy, is that right?

Mark Irving Levy:

That’s correct.

Byron R. White:

There is no claim in this case of that which the dissent in Rakas focused on, there is no privacy claim in this case.

Mark Irving Levy:

That’s correct.

Byron R. White:

It is just the automatic standing part of Jones?

Mark Irving Levy:

That’s correct.

Byron R. White:

Is it not a fact that the majority in Rakas, unlike the dissenters, attach significance to the absence of a property interest in the automobile?

Mark Irving Levy:

Well —

Byron R. White:

So doesn’t the majority actually cut more against you than the dissent does in the Rakas case?

Mark Irving Levy:

I don’t believe so.

I think our position is consistent in both the majority and the dissent because as I read the majority opinion in Rakas, the —

Byron R. White:

But the extent that you contend that a property interest in the property is irrelevant.

There is language in the majority opinion that is inconsistent with your view.

Mark Irving Levy:

I don’t believe our position is that it is totally irrelevant.

Our position is that it is not sufficient.

I think there may be circumstances in which the property —

Byron R. White:

How could it ever be relevant to the legality of the invasion of privacy which is caused by an improper search?

Mark Irving Levy:

One consideration in assessing the expectation of privacy is how the property was used.

To the extent it was used to store one’s possessions, then that is a factor to be taken into account in assessing the privacy interest.

It is not a dispositive factor, but I think it is one factor among many that could be considered by the Court in evaluating the defendant’s expectation of privacy.

John Paul Stevens:

You would agree that the majority attached greater significance to property than the dissenters did in Rakas?

Mark Irving Levy:

I read the Rakas majority simply to leave open the question of the effect of a property interest —

John Paul Stevens:

Well, you don’t think that the passenger in Rakas had been a part owner of the car, that he would have had standing?

Mark Irving Levy:

I’m sorry, I didn’t understand.

John Paul Stevens:

Suppose the passenger in Rakas had been a part-owner of the car, would you have thought he still did not have standing? You only have standing for the driver, would that be your view?

Mark Irving Levy:

No, he might have standing in that case, but that goes to a different property interest.

That is the property interest in the area that is searched, like the suitcase in Arkansas v. Sanders.

That does not go to a property interest in the items that are seized, and that is the basis —

John Paul Stevens:

Well, wouldn’t that have been the critical fact as in Rakas the passenger did not have standing, but if he had been a part owner of the car, presumably he would have had standing so therefore doesn’t that make ownership the critical test under the Rakas approach on which you seem to rely?

Mark Irving Levy:

Well, I don’t think that Rakas goes that far.

But in any event, Rakas was concerned only with the property interest in the area that was searched.

I think that is an entirely different question than a property interest in the item seized as a basis for suppressing the evidence obtained during the search.

In answer to your question before, Mr. Justice Stevens, there is only one case of which I am aware, United States v. Mazzelli, from the Ninth Circuit, that deals with the question of a possessory interest in the item seized as a sufficient basis for challenging — that holds that a possessory interest in the item seized is a sufficient basis for challenging the search.

Byron R. White:

There is another case, you know, that deals with the problem.

Mark Irving Levy:

There are many cases that deal with it, including your opinion in United States v. Lisk.

Mazzelli is the only one of which I am aware that goes the other way, and that is presently pending before the Court on our petition for certiorari under the name of Conway.

Other than that, I am not aware of any cases that have so held.

We would also like to emphasize that the arguments that we present in our reply brief are applicable not only to the automatic standing issue that is presented in this case but are also fully applicable in cases where the defendant claims actual standing.

In particular, we believe that the defendant in Rawlings v. Kentucky, which is to be argued in tandem with the instant case today, does not have actual standing simply because his property interest in the items that were seized from his companion’s purse, that basis by itself in our view does not suffice to establish his Fourth Amendment standing for the reasons set forth in our reply brief.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.