United States v. Salvucci

PETITIONER:United States
RESPONDENT:Salvucci
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 79-244
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 448 US 83 (1980)
ARGUED: Mar 26, 1980
DECIDED: Jun 25, 1980

ADVOCATES:
John C. McBride – on behalf of Respondent Zackular
Mark Irving Levy – on behalf of the Petitioner
Willie J. Davis – on behalf of Respondent Salvucci

Facts of the case

Question

  • Oral Argument – March 26, 1980 (Part 2)
  • Audio Transcription for Oral Argument – March 26, 1980 (Part 2) in United States v. Salvucci

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

    Warren E. Burger:

    We will hear argument next in No. 79-244, United States v. Salvucci and Zackular.

    Mr. Levy, I think you may proceed when you are ready.

    Mark Irving Levy:

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

    This case is here on writ of certiorari to the United States Court of Appeals for the First Circuit.

    The respondents were charged in a 12-count indictment with unlawful possession of stolen mail.

    The indictment was based on twelve checks that had been stolen from the United States mails and that were determined to bear respondents’ fingerprints.

    These checks, along with more than 700 other stolen checks, were seized by Massachusetts State Police officers during their search pursuant to a state warrant of an apartment rented by respondent Zackular’s mother.

    The indictment alleged that respondents unlawfully possessed this stolen mail from late 1975 to on or about December 17, 1976, the date on which the search occurred.

    Prior to trial, the respondents moved to suppress the checks because the affidavit submitted in support of the application for the search warrant failed to show probable cause.

    The District Court granted their motion and ordered suppression.

    The government then sought reconsideration of the suppression order on the ground that the respondents lacked standing to challenge the search of the mother’s apartment.

    The government’s motion for reconsideration argued that respondents had neither a sufficient proprietary or possessory interest in a property seized or premises searched to contest the validity of the search, nor automatic standing under Jones v. United States.

    The respondents filed a memorandum in opposition to this motion in which they relied solely on a claim of automatic standing.

    Following submission of the government’s memorandum, the District Court by a handwritten notation on the face of the government’s motion reaffirmed the suppression order.

    On the government’s appeal, the First Circuit affirmed.

    With respect to the issue of standing, it found that the respondents had no actual standing to contest the lawfulness of the search because they had not established a reasonable expectation of privacy in the premises searched or the property seized or claimed the proprietary or possessory interest in the premises or the checks.

    Nevertheless, the court held the respondents could challenge the search based on the automatic standing rule of Jones.

    Although it recognized that this Court had questioned the continued vitality of the automatic standing doctrine and that there was a split of authority in the lower courts on the issue, the Court of Appeals felt obligated to adhere to the Jones rule until this Court resolved the matter.

    We submit that the Jones automatic standing rule should now be overturned.

    Under Jones, a defendant automatically has standing to contest a search that leads to the seizure of evidence where possession of the seized evidence at the time of the search is an essential element of the offense with which he is charged.

    Automatic standing turns solely on the nature of the charge brought by the prosecutor and it enables a defendant to obtain the suppression of reliable and probative evidence even though his own constitutional rights were not implicated in the search.

    In this way, automatic standing is inconsistent with the well settled principle that the exclusionary rule can be invoked only by a defendant who has demonstrated that his personal Fourth Amendment rights have been violated.

    The Court in Jones found that cases involving possessory offenses presented a special problem that for two reasons warranted departure from the conventional principles of standing.

    First was the self-incrimination dilemma in which the defendant was confronted with either foregoing the assertion of his Fourth Amendment claim or, in order to establish standing, giving incriminating testimony as an admission could be used in the government’s case in chief to prove his guilt at trial.

    As this Court observed in Brown v. United States, this self-incrimination dilemma can no longer occur in light of the subsequent decision in Simmons v. United States that a defendant’s testimony at a suppression hearing cannot be introduced as part of the prosecutor’s direct case at trial.

    We believe that Brown correctly concluded that the self-incrimination dilemma is no longer an issue after Simmons.

    John Paul Stevens:

    So there is no issue here about other grounds for standing here, such as an interest in the premises or being a guest on the premises?

    Mark Irving Levy:

    There is not.

    The respondents were not present at the time of the search and they have never in the course of this proceeding asserted that they had any basis for actual standing.

    Indeed, respondent Zackular in his brief in the Court of Appeals and in this Court I think expressly concedes that they have no actual standing, and there is nothing in the record to support the claim of actual standing.

    Mark Irving Levy:

    Hence, as the Court recognized in Brown, the continued validity of the automatic standing rule rests solely on the second rationale in Jones, the so-called vice of prosecutorial self-contradiction whereby the government alleges the defendants’ possession as an essential element of the defense charge but denies that there was possession sufficient to establish the defendants’ standing to contest the search.

    In our view, the automatic standing rule cannot be justified on this ground.

    It is not inherently contradictory for the government to charge a defendant with a possessory offense based on his culpable conduct prescribed by the penal code and at the same time to contend that he had no legitimate expectation of privacy that was implicated by the search that uncovered the illegally possessed items.

    William H. Rehnquist:

    Mr. Levy, it is actually the defendant that brings a suppression motion, not the government, isn’t it?

    Mark Irving Levy:

    That’s correct.

    William H. Rehnquist:

    So the government is just advancing arguments as to why the suppression motion shouldn’t be granted.

    Mark Irving Levy:

    I believe that is correct, and I think the holding of Jones is that the government is foreclosed from contesting the suppression motion on the ground that the defendant didn’t have standing to raise it.

    William H. Rehnquist:

    Does that really make much sense?

    Mark Irving Levy:

    We don’t believe that it does.

    This is most clearly illustrated in cases where the defendant is charged not with actual possession at the time of the search but rather is charged with constructive or vicarious possession.

    For example, a defendant who exercises dominion or control over contraband, even though it is not in his actual possession, has engaged in conduct that the criminal law rightly condemns and he is subject to prosecution for a possessory offense under a theory of constructive possession, but that fact standing alone is not tantamount to a concession by the government that the defendant’s Fourth Amendment rights were affected by the search of a third party’s premises or property in which he had no legitimate expectation of privacy.

    For example, consider a defendant who without permission conceals contraband narcotics on the property of a stranger with the intention later to reclaim the drugs and sell them.

    If the police illegally enter and search the third party’s property and seize the narcotics, it can hardly be thought that the defendant’s Fourth Amendment rights were infringed for he had no reasonable privacy interest in the place that was illegally searched.

    In these circumstances, it would be fully proper for the government to charge the defendant with unlawful possession at the time of the search and yet object to his standing to seek the suppression of evidence on the basis of the illegal search.

    Another example suggested by the decision in Rakas v. Illinois in which the Court held that the defendant’s Fourth Amendment rights were not violated by the illegal search of the car in which they were riding.

    The defendants in Rakas were charged with armed robbery.

    If, however, they had been prosecuted and convicted with the unlawful constructive possession of the rifle that was found during the course of the search, it is difficult to see that their suppression claim would be enhanced in the slightest or that the government would be acting in a contradictory fashion by prosecuting on that charge while denying that the defendants could challenge the search under the Fourth Amendment.

    John Paul Stevens:

    Mr. Levy, could I ask you a question.

    Suppose the defendants in this case contended that the checks had been duly endorsed over to him or some such claim pursuant to which he claimed some rightful entitlement to the checks, would he have standing (a) to ask for their return, and (b) to object to the search in the third party’s premises?

    Mark Irving Levy:

    Well, we think if he had standing at all it would not be under the theory of automatic standing.

    John Paul Stevens:

    Well, I am not asking about the theory, I am just asking what your position is.

    Mark Irving Levy:

    If he could establish that the checks were his and that they were —

    John Paul Stevens:

    He alleges they are his.

    Mark Irving Levy:

    Well, he would file a motion under Rule 41 of the Federal Rules of Criminal Procedure for the return of property.

    He would need to establish more than simply —

    John Paul Stevens:

    So you agree he would by that allegation have standing to seek their return?

    Mark Irving Levy:

    I agree.

    John Paul Stevens:

    Would he also have standing by that allegation to object to the search of the premises in which they were found by illegal conduct of the police?

    Mark Irving Levy:

    I do not believe so.

    It seems to me there are two distinct interests that are protected by the Fourth Amendment.

    Mark Irving Levy:

    One is against unreasonable searches and the other is against unreasonable seizures.

    John Paul Stevens:

    So your argument doesn’t depend at all on the contraband character of the items that the police seized?

    Mark Irving Levy:

    We have a secondary argument that relies on the contraband character, that if this Court contrary to our argument should conclude that the defendants’ legitimate interest in the property seized does entitle him to challenge the search, then that rule would be inapplicable where the defendant was in possession of contraband material such as narcotics or stolen goods.

    John Paul Stevens:

    But you do not agree that even if he had title to the property, say it was a gun and he claimed it was registered and he acknowledge he owned it and so forth and there was nothing illegal about its possession and it was taken out of a third party’s premises, that would not give him standing to challenge the search of those premises?

    Mark Irving Levy:

    That’s correct, we do not think that would give him standing to challenge the search.

    It might give him standing to challenge the seizure if he alleged there was something —

    John Paul Stevens:

    He would ask for his property back, yes.

    Mark Irving Levy:

    That’s correct, or he might be able to seek suppression at trial on the basis that the seizure rather than the search was unlawful if he had a ground for challenging the seizure of the gun in your hypothetical, Mr. Justice Stevens.

    But we think that is a distinct matter from his ability to challenge the search that led to the seizure of the gun.

    John Paul Stevens:

    Well, what ground could he claim the seizure was unlawful?

    Mark Irving Levy:

    Well, if —

    John Paul Stevens:

    If he cannot challenge the search, which would be the only basis as I understand your —

    Mark Irving Levy:

    Well, there may be some basis on which a seizure itself could be challenged.

    For example, if the incriminating nature of the evidence were not immediately apparent under a plain view doctrine, for example —

    John Paul Stevens:

    Oh, I see.

    Mark Irving Levy:

    — or if the police were entitled to seize something temporarily as a means of protection but they retained the item longer than was necessary, there might be some grounds for challenging the seizure itself apart from the search that led to the seizure.

    One way to see we think the absence of any prosecutorial self-contradiction in the automatic standing situations is to ask whether the defendant would be entitled to pursue applicable remedies other than the exclusionary rule such as a damage action for the assertedly unconstitutional search.

    We think it plain that in the hypotheticals I mentioned a few moments ago that the defendant would not be awarded monetary damages since his Fourth Amendment rights were not violated by the illegal search.

    For the same reason, he should not be able to invoke the exclusionary rule remedy, and that conclusion is independent of the nature of the charges brought against him.

    Thus, we think that the Jones rationale or prosecutorial self-contradiction does not support the continuation of the automatic standing rule.

    Apart from the two rationales of Jones itself, the respondent, Salvucci, contends in his brief that the automatic standing rule can be justified by reference to principles of actual standing.

    Salvucci argues that a defendant’s possessory interest in contraband that is seized entitles him without more to seek suppression of that evidence on the ground that the underlying search violated the Fourth Amendment.

    Salvucci then argues that the charging of a possessory offense necessarily constitutes an admission by the government that the defendant has the requisite possessory interest in the seized contraband to enable him to challenge the search and therefore that the automatic standing rule should be retained to avoid the needless formality of an inquiry into standing at the suppression hearing.

    We submit that this line of argument is entirely unsound.

    In our view, as I just discussed with Mr. Justice Stevens, a defendant’s proprietary or possessory interest in items seized does not in and of itself entitle him to contest the validity of the search.

    Moreover, regardless of the general rule, an asserted possessory interest in contraband, such as stolen property, is totally illegitimate and cannot served as the basis for a Fourth Amendment challenge to either a search or a seizure.

    Finally, even if a possessory interest in contraband could suffice to confer standing with respect to the search, the automatic standing rule still would not be warranted, since not all possessory interests should be considered adequate but rather only those interests that establish a sufficient personal nexus between the seized contraband and the defendant.

    First, a defendant’s proprietary or possessory interest in the items seized does not in itself entitle him to challenge the legality of the search.

    Salvucci’s argument to the contrary reflects a misconception of the Fourth Amendment’s protections against unreasonable searches and unreasonable seizures.

    A search is defined under the Fourth Amendment in terms of a governmental intrusion upon a person’s legitimate expectation of privacy.

    Mark Irving Levy:

    It depends not on a property right but, rather, on a reasonable privacy interest.

    A seizure of a physical object, on the other hand, is defined in terms of a governmental interference with the bundle of property rights that attends a person’s interest in or relation to that object.

    It implicates precisely those property rights that a person has by virtue of his ownership or possession of a given object.

    Under this analysis, a proprietary or possessory interest in items seized could give rise to standing to challenge the validity of the seizure, since it was the act of seizure that dispossessed the defendant of his property.

    William H. Rehnquist:

    The government has a right of eminent domain, I take it, in any of these cases, that it could seize items and pay for them?

    Mark Irving Levy:

    I think that would satisfy the Fifth Amendment taking problem.

    I don’t think the government here purported to seize items under its eminent domain power or would be willing to pay for the items that they found to be unlawfully seized.

    The government here is not asserting that as items seized it is a transfer of title to the government if it was an item that the defendant was entitled to own, but rather than the government is entitled to temporary possession for use of the item in the criminal proceeding against the defendant.

    I think it is a different problem than a taking issue that might be posed in other circumstances.

    The defendant’s interest in his property, however, even if allowing him to challenge the seizure, would not entitle him to challenge the antecedent search of a third party’s premises in which by hypothesis the defendant has no legitimate expectation of privacy.

    Nor can standing be based on the proposition that a defendant has a cognizable privacy interest in a place simply because his property is kept there.

    We acknowledge that in some circumstances a defendant who stores his property in the premises of a third party may have a sufficient privacy interest in those premises to challenge a search.

    On the other hand, not all such uses of a third party’s premises would demonstrate a privacy interest.

    For instance, if the defendant illegally entered someone’s home and without the knowledge or permission of the owner concealed incriminating evidence in the basement, he should not be heard to complain that his reasonable expectation of privacy was infringed if the police unlawfully search the basement for that evidence.

    Likewise, if the defendant simply asks a third party briefly to keep something for him, without any understanding as to the particular location of where it would be kept or the need for it to be securely and privately stored, then we doubt that the defendant has an expectation of privacy in the place where the third party eventually decides to put the object.

    In these cases, the pertinent inquiry is not whether the defendant had a proprietary or possessory interest in the items that were seized but whether taking into account all relevant considerations, including his use of the area to store his belongings, the defendant had a legitimate expectation of privacy with respect to the area searched.

    The fact that the defendant’s property was legitimately on the third party’s premises does not by itself give him a privacy interest in those premises, just as in Rakas the defendant’s legitimate presence in the car that was searched did not by itself entitle him to challenge the legality of the search.

    We do not think that the decisions of this Court compel different analysis than the government presents here.

    In particular, we do not read United States v. Jeffers to be a contrary holding.

    We believe that the defendant’s standing in Jeffers was based on his interest in the hotel room that was searched.

    He had a key to that room, he had permission to use the room at will, and in fact he often entered for various purposes.

    This was clearly an adequate ground on which to find standing, and we don’t think that the Court’s opinion in Jeffers is best understood to rest on a possessory interest in the items that were seized.

    John Paul Stevens:

    Mr. Levy, there were actually three theories in Jeffers.

    I am sure they are hinted at in different parts of the opinion.

    One of them was this theory of when a search is directed at a particular defendant.

    I don’t understand that theory as being involved in this case at all.

    Is that correct?

    By directed at, do you understand what I mean?

    Mark Irving Levy:

    Yes, I do.

    John Paul Stevens:

    That theory isn’t presented in this case at all, is it?

    Mark Irving Levy:

    It hasn’t been raised in this case and I think the Court rejected it in Rakas.

    I am not aware of whether the police officers at the time they conducted this search were subjectively seeking the evidence against the defendants or others.

    I think —

    John Paul Stevens:

    There is no claim of that kind, is there?

    Mark Irving Levy:

    There is no claim of that kind here.

    To the extent that standing in Jeffers was based on the property that was seized, which we think is not the best reading of the opinion, the Court indicated that it declined to separate the search and the seizure because, in the Court’s words, they were bound together by one sole purpose, to locate and seize the narcotics of the respondent.

    Warren E. Burger:

    Is there ever any different separable purpose in searches and seizures?

    Mark Irving Levy:

    There conceivably could be if entry is made to search for incriminating evidence against one defendant and other incriminating evidence against the second defendant —

    Warren E. Burger:

    Well, if you find other evidence not in the warrant, but then you have other problems, don’t you, if you have a warrant?

    I just didn’t understand your separation point.

    Mark Irving Levy:

    I think that the Court’s reliance on that theory is, as Mr. Justice Stevens just suggested, a variant of the target theory which was rejected in Rakas.

    We think that is the basis on which the Court declined to separate the search and the seizure.

    To that extent, we think that Jeffers has already been discredited by Rakas and doesn’t present a controlling view of the Fourth Amendment.

    In any event, to the extent that Jeffers rested in some other way on a defendant’s interest in the items seized, we submit that it is inconsistent with subsequent doctrine that clearly distinguishes between an unreasonable search and an unreasonable seizure and therefore it can no longer be regarded as controlling.

    At this point, I would like to reserve the balance of my time.

    Warren E. Burger:

    Mr. Davis.

    Willie J. Davis:

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

    Twenty years ago, when this Court decided Jones, it did so on two very distinct grounds which we contend have not been changed since that time.

    As far as the vice of prosecutorial — well, let me put it this way.

    All of the cases that have been decided by this Court and most of the cases relied on by the Solicitor General in seeking cert in this case did not involve a situation where possession was an essential element of the crime.

    And it is our decision in presenting the matter to the District Court and the Court of Appeals that we should separate the two types of crimes, that is, one we call the possessory crime, and one a non-possessory crime.

    We have no quarrel with any decision of any court where they rely on the invasion of one’s own privacy to establish standing where the crime is non-possessory.

    But we submit that Justice Frankfurter was absolutely correct when speaking for a unanimous Court in Jones, that where you have this possessory crime, that this ought to set it apart, it ought to be separate and distinct.

    Now, if we chose not to —

    Byron R. White:

    What reason did the Justice have for saying that, though? What reason did he give?

    Willie J. Davis:

    Because the government would be allowed to talk out of both sides of its mouth in a possessory crime.

    Byron R. White:

    Also his statements could be used against him.

    Willie J. Davis:

    That’s correct.

    Warren E. Burger:

    Can it be used against him any more?

    Willie J. Davis:

    Well, let me put it this way.

    Willie J. Davis:

    We say that Simmons does not overrule Jones in this respect.

    We submit that Simmons only applied to non-possessory crimes.

    As a matter of fact, the Court in Simmons explicitly said that.

    They explicitly said that they resolved the problem of possessory crimes with Jones, and now we go on to the non-possessory crimes —

    Byron R. White:

    Well, what if we said in this case that his statements couldn’t be used against him?

    Willie J. Davis:

    Well, I still say it is not enough.

    Byron R. White:

    Why is that?

    Willie J. Davis:

    It is not enough for the simple reason that if he were to take the stand at a motion to suppress and to admit having possession, then it would lead the prosecution perhaps to some evidence that he could use in his direct case without the testimony of the defendant coming in at the trial.

    For example, what if the prosecutor asked the defendant at a hearing on a motion to suppress, where did you get the stolen checks, and the defendant said I got them from Sam Jones.

    The government now has a lead.

    They can go talk to Sam Jones and indeed perhaps present Sam Jones in their direct case in anticipation of a defense presented by the defendant.

    William H. Rehnquist:

    But it is the defendant’s motion to suppress, not the government’s.

    Willie J. Davis:

    Sure it is.

    William H. Rehnquist:

    So the defendant is certainly talking out of both sides of his mouth.

    Willie J. Davis:

    The defendant is what?

    William H. Rehnquist:

    The defendant would certainly be talking out of both sides of his mouth.

    Willie J. Davis:

    Oh, no, he would not.

    No, he would not.

    The defendant would take the stand at a motion to suppress and say, yes, I did have possession of them.

    That is not talking out of both sides of his mouth.

    He is admitting it, and I am saying that his admission could later be held against him.

    Byron R. White:

    But he isn’t pleading guilty —

    Willie J. Davis:

    No, he is not pleading guilty but he —

    Byron R. White:

    — not guilty, he says I didn’t have possession.

    Willie J. Davis:

    If he took the stand and said I didn’t have possession, that is entirely another matter.

    We don’t say that he has a right to take the stand at any hearing and lie.

    William H. Rehnquist:

    But when he pleads not guilty, it puts all the material issues and material elements in issue.

    Willie J. Davis:

    It does, and he simply says by that I did not commit the crime as charged, and this crime has, as all of the proof, more than the element of possession.

    You go further, the element of possession with knowledge that the checks were stolen.

    Now, he could certainly admit at a motion to suppress that he had possession of the checks and then go on to say, yes, but I had no criminal intent because I didn’t know they were stolen, I received them from Sam Jones who said to me, hey, take a look at what I have here, hold this for me, or anything like that.

    Willie J. Davis:

    That is not and cannot be prosecuted under the particular statute because he didn’t possess it knowing the checks had been stolen.

    Warren E. Burger:

    I am not sure I got your point about the lead, if he answered “I got them from Sam Jones” —

    Willie J. Davis:

    Yes.

    Warren E. Burger:

    — do you see that there is something impermissible or wrong about there going to Sam Jones and saying did you —

    Willie J. Davis:

    Oh, it is not wrong.

    It is not wrong.

    It just gives the government more ammunition than they had before.

    Warren E. Burger:

    Impermissible in some way?

    Willie J. Davis:

    I am not speaking of impressible.

    I agree that it is proper.

    As a matter of fact, defendants do it themselves at a motion to suppress.

    How often do they use it as a forum for discovery, trying to get as much of the government’s case as they can.

    I am saying now that the government would be allowed to explore the defendant’s case at a motion to suppress and tighten its case as a result of it.

    William H. Rehnquist:

    Why?

    Willie J. Davis:

    Because they got it initially by illegal means.

    And if you say that they got it by illegal or unlawful means, the defendant has no way to combat it.

    He has no way to combat it.

    William H. Rehnquist:

    But that is the whole point at issue in the suppression, isn’t it, whether or not the personal Fourth Amendment rights of the defendant were violated?

    Willie J. Davis:

    I don’t agree with that.

    I don’t agree that that is the whole of a motion to suppress, that his personal rights were violated.

    That is why we asserted the automatic standing rule of Jones in response to the government’s subsequent motion to reconsider the denial —

    Byron R. White:

    The automatic standing rule means that a defendant wins the motion to suppress even though his own personal Fourth Amendment rights were not violated.

    Willie J. Davis:

    It doesn’t mean that at all.

    It simply means that he has standing to say that the search was unlawful, but it doesn’t mean that the search was.

    Byron R. White:

    Suppose a person is accused of the possession of stolen goods and the officers retrieved the stolen goods by breaking into a house without a warrant and seizing the goods, but the house didn’t belong to the defendant and the defendant didn’t claim any interest in the premises, he moves to suppress.

    Well, I guess under your approach he would have standing to raise it but he would lose.

    Willie J. Davis:

    No, I wouldn’t say that he had automatic standing under those conditions unless possession was an essential element of the crime.

    Byron R. White:

    Well, he was accused in the indictment of stolen property.

    Willie J. Davis:

    All right, possession of stolen property.

    All right, possession is an essential element of the crime, so I think that that in and of itself gives his automatic standing because the government has said he possessed it.

    Byron R. White:

    All right.

    So you would say then he should win his suppression motion?

    Willie J. Davis:

    Yes, on your theory, because the search was positively unlawful.

    Byron R. White:

    So the standing rule means that he can win the suppression motion even though the goods were seized in somebody else’s house.

    Willie J. Davis:

    It’s only right under Jones.

    William H. Rehnquist:

    Wouldn’t you agree, Mr. Davis, that both Alderman and Rakas significantly questioned the automatic standing rule, and Brown too?

    Willie J. Davis:

    No, I do not.

    I do not read them as questioning the automatic standing rule because all of those cases did not apply to a crime where possession was an essential element and we have to rely on that.

    William H. Rehnquist:

    But isn’t there a footnote in Rakas that says we don’t have to face it, it is up in the air, in effect?

    Willie J. Davis:

    Well, you said it was up in the air and I believe because of all of the decisions from the circuits emanating after Simmons.

    That is why I think maybe you put the footnote there, because the circuits were interpreting differently all around, and I still say that after Simmons you still have the same thing, even the self-incriminating aspect of it.

    I still say we have the same thing.

    And as far as the automatic standing because of the vice of self-prosecution contradictions, I think still was standard.

    There is nothing that has happened in any circuit, there is nothing that happened in this Court which changes that one iota.

    As a matter of fact, you intimated in Brown that it still is viable, and Rakas was a little after Brown, of course.

    William H. Rehnquist:

    But we certainly didn’t reaffirm it in Brown.

    Willie J. Davis:

    No, the occasion wasn’t there for you to reaffirm.

    William H. Rehnquist:

    Right.

    Willie J. Davis:

    I believe that my brother has fifteen minutes and I will leave the remaining arguments to him.

    Thank you.

    John C. McBride:

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

    Warren E. Burger:

    Mr. McBride.

    John C. McBride:

    The facts and the law enunciated in Rakas, the facts and the law enunciated in Simmons and in Brown do not, I most respectfully suggest, undercut the theory that we are advocating today.

    We, the respondents in this case, are asking the Court to uphold the decision, the stare decisis enunciated by Mr. Justice Frankfurter in Jones v. United States.

    In Rakas, decided in December 1978 by this Court, the Court was confronted with defendants charged with armed robbery.

    They were not charged with unlawful possession of the shotguns and of the shotgun shells that were found respectively inside the glove compartment that was locked and inside the car, underneath the front seat that was discovered by the police.

    I submit most respectfully that there might have been a different result if they were charged with unlawful possession of those particular items.

    William H. Rehnquist:

    Don’t you think Judge Janu thought that the matter was in considerable doubt in the opinion of the First Circuit?

    John C. McBride:

    I certainly think he did, Your Honor, in light of the opinions of the many circuits that have construed Jones in different respects, and I think most respectfully it is time for this Court to reaffirm —

    Warren E. Burger:

    We will resume there at 1:00 o’clock, Mr. McBride.