United States v. Watson – Oral Argument – October 08, 1975

Media for United States v. Watson

Audio Transcription for Opinion Announcement – January 26, 1976 in United States v. Watson

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Warren E. Burger:

We will hear arguments next in 74-538, United States against Watson.

Mr. Frey.

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to review a judgment of the Court of Appeals for the Ninth Circuit, reversing respondent’s conviction on the grounds that the stolen credit cards he was convicted of possessing, have been obtained by postal inspectors during an illegal search of respondent’s automobile and should have been suppressed as evidence at his trial.

I will state the case at some length not because the facts are particularly complicated, but because they demonstrate so convincingly that the decision of the Court of Appeals was erroneous and should be reversed.

On August 17, 1972, Postal Inspector Frank Barbarick (ph) received the telephone call from Awad Khoury, an informant who had supplied accurate information to Barbarick on a number of prior occasions.

The informant told Barbarick that respondent Watson was in possession of a stole Bank of America Credit Card and planned to turn the card over to Khoury.

Later that day, Khoury met with Barbarick and turned over the credit card such as he had described.

The inspector ascertained from the Bank of America that the credit card had been mailed three days earlier and had never reached its intended customer.

The informant told Barbarick that he and respondent had an agreement.

Respondent would furnish the informant with additional credit cards stolen from the mail and the informant would purchase airline tickets and merchandise with the cards.

Inspector Barbarick instructed the informant to set up another meeting with the respondent to obtain the additional credit cards.

Although there was sufficient time to have obtained a warrant for respondent’s arrest during the time that passed between this initial contact and the actual arrest, the postal inspector made no attempt to do so.

After several postponements, the meeting was finally held between the informant and respondent at noon on the 23rd of August, in a restaurant in Los Angeles.

At the designated time, the informant met and at a nearby table there were two postal inspectors stationed.

Inspector Barbarick had instructed the informant that if respondent were in possession of stolen credit cards, the informant should light a cigarette as a signal to the surveillance agents in the restaurant.

The agents would then activate a beeper which would inform agents positioned outside the restaurant.

At the meeting, the informant learned that respondent had the credit cards outside in his car.

He lit a cigarette and the agents in turn activated their signal, Inspector Barbarick and other agents entered the restaurant and placed respondent under arrest for possession of stolen mail and specifically for possession of the card that the informant had turned over to Inspector Barbarick six days earlier.

The inspectors escorted respondent out of the crowded restaurant and searched him.

But they did not find the credit cards on this person.

Respondent was then given Miranda Warnings.

The respondent who had previously been an informant for Inspector Barbarick and who knew him well said in response to the Miranda Warnings, Frank, which was Barbarick’s first name, I understand my rights.

The inspector then asked respondent where his automobile was located and respondent pointed to a car nearby.

And the inspector said, can I look inside and respondent said, go ahead.

Then the inspector said you know if I find anything it is going to go against you and respondent said, go ahead, there is nothing in there.

The respondent then gave the inspector the keys which opened the locked car and Inspector Barbarick and another inspector searched the car and found under the floor mat an envelope containing two pieces of stolen mail each with credit cards inside them.

These two pieces of mail together with these two credit cards, together with the credit card supplied six days or earlier by the informant formed the basis of the indictment returned against respondent for possession stolen mail.

Prior to trial, respondent moved to suppress the stolen credit cards.

He made several arguments.

Mr. Andrew L. Frey:

First that the informant was not a reliable informant, and therefore, there was no probable cause to arrest respondent.

Second, that a warrant was required for respondent’s arrest.

And third, that respondent’s consent to the search of his automobile was invalid because he had not been told that he could withhold his consent.

The District Court denied the motion and respondent’s trial proceeded.

He was convicted by the jury on two counts, involving the credit cards found under the floor mat of his automobile.

He was acquitted on a count involving the credit card turned over six days earlier to the informant, by the informant rather to the inspector.

The divided panel of the Court of Appeals reversed the conviction.

The majority concluded that the information gathered by Inspector Barbarick from the informant was reliable.

It was confirmed by physical receipt of a stolen credit card, that it did provide probable cause to arrest respondent, and therefore, it rejected that argument that respondent had made.

It held, however, that because the officers had not sought or obtained a warrant for respondent’s arrest during the six days between the acquisition of probable cause in the meeting at the restaurant, the arrest was unconstitutional.

Proceeding from that conclusion, the majority then held that the consent respondent gave to search his automobile was defective.

It purported to adhere to the totality of all the circumstances test annunciated by this Court in Schneckloth against Bustamonte, but stated nevertheless that the consent was involuntary because respondent was in custody in violation of the Fourth Amendment.

William H. Rehnquist:

Do you think the Court of Appeals’ holding amounted to a statement that a respondent like the one here who had been illegally arrested could not under any conceivable circumstances give a valid consent to a search of his car?

Mr. Andrew L. Frey:

Well, I think the Court of Appeals did not expressly put it in on those words, but every single fact that would bear on the actual voluntariness of respondent’s actions tended to point toward voluntariness and I think it must be viewed in effect upon analysis as a per se rule there would be three factors: (1) custody (2) illegal and (3) the lack of a specific Miranda type warning of a right to withhold consent.

although as I will argue later, there was effectively a communication of the right to withhold consent in this case.

The case thus presents the court today with two issues.

Warren E. Burger:

Excuse me Mr. Frey, you mean to say they made the per se rule, do you think they made a per se rule both on the arrest factor and on the consent or just only consent?

Mr. Andrew L. Frey:

Well, the rule on the arrest issue would turn on certain facts I think.

In other words, it would turn on the question of whether there was an opportunity, whether in fact they had acquired probable cause, whether they had an opportunity subsequent to the acquisition of probable cause to obtain a warrant.

The rule then would be that an arrest is illegal if they had acquired probable cause and had passed up the opportunity to get a warrant.

So in that sense I suppose it is a per se rule.

Warren E. Burger:

The only fact of determination left to be made is on the time, is that not so?

Mr. Andrew L. Frey:

I think it would be equivalent to the emergency doctrine for search warrants of homes, that is the government would be required to show exigent circumstances that justify the failure to get a warrant, otherwise the arrest would be unlawful.

Warren E. Burger:

Well, what cases held that a warrant must be obtained simply because there is time to obtain it?

Mr. Andrew L. Frey:

An arrest warrant?

Warren E. Burger:

Yes.

Mr. Andrew L. Frey:

No case.

Warren E. Burger:

So that they have established the rule that if there is time to get a warrant, an arrest without a warrant is invalid, is that not the holding here?

Mr. Andrew L. Frey:

That is correct and it is definitely a new rule.

Warren E. Burger:

A per se rule, is it not?

Mr. Andrew L. Frey:

Yes, it is a per se rule, although unlikely rule on — the rule on the consent issue, you look at three relatively concrete isolated and inflexible kinds of facts and if you find those three facts then there cannot be a valid consent.

Here there is a factual inquiry into exigent circumstances which cannot be pinned down as quite as specific a narrow inquiry, but it is a per se rule ones you gotten across the factual threshold.

Now, the two questions that are presented to the court today, both the question regarding the need to obtain a warrant for and arrest and the question regarding the ability of one in custody and in illegal custody to consent to a search are questions of great practical importance to everyday law enforcement.

I believe, turning first to the arrest issue, that it would be a considerable understatement to say that decision of the Court of Appeals represents a sharp break with tradition and history.

The Federal rule, the rule in each of the 50 states, the common rule, the rule I dare say that each of you learn as black letter law during your first year criminal law course in law school is that a law enforcement officer may make a warrantless arrest for felony on the basis of probable cause, at least so long as the arrest does not entail an entering to a dwelling or similar place.

This proposition has been recognized in numerous decisions of this Court during the past 50 years from the Carroll case to last term’s decision in Gerstein against Pugh.

It is reflected in Section 3061 of Title XVIII of the United States Code which authorized Inspector Barbarick to arrest respondent without a warrant on the very circumstances of this case.

Neither we nor respondent have been able to find a single case in the entire annals of Anglo-American jurisprudence holding otherwise.

The Court of Appeals relied on the Coolidge case, but I think it is quite clear that Coolidge does not support the conclusion it reached.

Coolidge was clearly and repeatedly focused upon the problem of an entry into a dwelling or similar place, a privacy invasion of that nature in connection with an arrest.

We have no similar ingredient in the present case.

Given this background then, I submit that even if it were otherwise desirable, this Court would not be free to overturn this consistent and heavyweight of precedent and to hold that this time for the first time, warrants are required as a constitutional matter.

Even if the court did consider itself free as a jurisprudential matter to adapt a radical constitutional departure embodied in the holding of the Court of Appeals, there are good reasons of policy and practice that counsel against such as then and we have made these arguments in our brief and we advance them without intending in any way to minimize the seriousness of being arrested.

We recognize that an arrest is an intrusion into individual liberty of substantial dimensions.

We recognize that the this Court has repeatedly looked carefully at the circumstances surrounding an arrest and has required that the officers have substantial justification amounting to probable cause in order to make a lawful arrest.

The question here of course is whether a warrant should be required.

I think there is one structural difference which I would like to mention this morning between a search of a dwelling which this Court has recognized in the absence of exigent circumstances does require a warrant and an arrest.

If a warrantless search is made and items are seized or indeed, if nothing is seized, there is no judicial accounting that necessarily takes place as a result of that action.

It may never come to the attention of the courts, indeed this is the problem I think that underlies the whole rational of the warrant requirement.

The reason that has impelled this Court to impose a warrant requirement is to ensure some degree of judicial supervision.

Only upon a motion for suppression of evidence or return of property which may be made many months later by the person who was the subject of the search is their judicial review.

Quite the contrary is the case where an individual is arrested, the law, both federally and in the states and as a result of Gerstein against Pugh requires a reasonably prompt judicial determination of the adequacy of the grounds underlying the arrest.

This to us is a substantial counterweight neutralizing to some extent the desirability that otherwise might be viewed to exist for obtaining a warrant prior to arrest.

There are also a lot of practical problems with requiring an arrest warrant and this case I think illustrates very well some of those problems.

Even when suspicion focuses on a suspect, the decision whether or not to arrest them is often not made immediately.

Instead, further investigation is undertaken, either with the goal of securing additional evidence or alternatively of demonstrating the suspect’s innocence.

Here an effort was made to obtain further confirmation by catching respondent red-handed with stolen credit cards, if it was possible to do so and indeed it was successful in this case.

Now, respondent seeks to explain a way our arguments that it is undesirable to force officers to seek warrants as soon as they have acquired probable cause by saying that well, the police can wait.

They do not have to acquire a warrant right away.

The only thing they have to do is get a warrant before making the arrest.

Mr. Andrew L. Frey:

But I think that argument does not work because as in this case, once the decision is made to arrest, the need often is sudden to do so.

Here in other words, the investigation was proceeding.

I think it is quite apparent for my recitation of the facts that no decision had been made whether or not to arrest the respondent or when to arrest him, until the signal was given in the restaurant which indicated that he was in possession of additional stolen credit cards.

At that point, he was — the officers had probable cause to believe that he was then and there committing a new crime.

Not to say that because they have failed to get a warrant previously, they were powerless to arrest them seems to me a very undesirable result.

Indeed, even if the innovation of the Court of Appeals in constitutional law of arrest were correct as a general proposition, it was wrongly applied to this case because here there was probable cause, fresh probable cause to arrest the respondent for a fresh offense.

I would like to turn the question of the voir dire of respondent’s consent to the search of his automobile.

And I hark back to some of the facts of the case as I stated earlier.

The respondent knew the arresting officer.

He was on a first name basis with him.

The situation was casual even friendly.

And the dialogue indicated a request for consent to search.

A consent followed, by a warning that if anything were found it would go against the respondent, followed by a repeated, almost a demand that the inspector search the automobile.

So obvious from those facts, the respondent not only willingly consented to the search, but that he believe it would benefit him because the inspector would fail to find the stolen mail that respondent had hidden under the floor mat of his car.

It is also clear I think from the facts, although the Court of Appeals says otherwise, that respondent knew he did not have to consent.

Again, under the holding of this Court in Schneckloth an actual concrete warning with respect to the right to withhold consent is not necessary and its presence or absence is simply a fact that could be taken into account, presumably that means that it is to be taken into account realistically on the facts of this case and where an arrested person is practically insisting that his car be searched, I think it is difficult to find that there was not voluntary consent.

William H. Rehnquist:

Was not the holding in Schneckloth limited to the non-custodial situation?

Mr. Andrew L. Frey:

Absolutely and I am turning to that next.

It is true that Schneckloth explicitly refrained from passing on the custodial situation.

However, six Courts of Appeals that we have been able to find the Second, Fourth, Fifth, Seventh, Eighth, and Ninth Circuits all have passed on that issue and indeed the Court below in this case said that consent alone just like the lack of a warning of a right to withhold consent is not a per se factor that would be automatically dispositive of the validity of the consent, but custody is a factor to be taken into account.

It seems to me clear that if a person in custody can give a valid confession as Miranda recognizes he can, that a person in custody can give a valid consent to a search.

Of course if he has been taken away and he spent six hours in the back room of a police station, that would be a significant factor in evaluating the voluntariness of his consent.

So I think that it is not necessary to dwell at substantial length on the factor of custody because it seems to me that the overall reasoning and structure of the Schneckloth decision and the principles that underlay it apply equally to the factor of custody.

It is possible to look at custody and to determine the circumstances of custody and from that to make a decision whether or not the consent that is given to a search is a voluntary consent.

And there is I think no need for per se rule and the Courts of Appeals seem to be in universal agreement on that question.

Thurgood Marshall:

I assume this is all very short term?

Mr. Andrew L. Frey:

I think that the record indicates about 15 minutes.

The search itself was about 15 minutes, but he was removed from the restaurant, arrested, told what he was arrested for, searched and then the conversation promptly ensued.

Thurgood Marshall:

Consent was very shortly after?

Mr. Andrew L. Frey:

Right, it was on the street prompt consent.

Mr. Andrew L. Frey:

And that the — of course the period of time that passed would be significant in the Rothman case in the Ninth Circuit which was cited by the Court of Appeals and then cited by my opponent.

Several hours had passed, during which repeated requests had been made to the suspect in custody to permit the search of his bag and he had refused over and over and finally he was told that the officers would get a warrant, although in fact they have not the least basis to get a warrant.

And at that point, he said, well, what the heck, go ahead and search it, but that is quite a different case from what we have here.

So turning from the fact of custody alone to the question of the illegal nature of the custody and I am assuming arguendo for purposes of this argument that respondent’s custody was illegal, it is clear that the illegality is in almost all cases totally irrelevant to the kind of voluntariness analysis that was applied in Schneckloth for assessing the validity of a consent.

The voluntariness of respondent’s consent could not possibly have been affected by what he did not know to wit that the Court of Appeals two years later would hold that his arrest was illegal for lack of a warrant.

Since the legality or illegality of the arrest could not have impinged on his consciousness or indeed on the consciousness of the postal inspectors under circumstances of this case, unless the Court is going to simply throw away the voluntariness analysis, the illegality cannot play a role in that analysis.

So in connection with the consent I think the only colorable issue that really exists is the fruit of the poisonous tree question and that is a question that was no adverted to at all or relied upon in any way by the Court of Appeals.

In other words, the argument is whether or not the consent was voluntary if it was the product of an illegal arrest, part of the deterrent purposes of the Fourth Amendment exclusionary rule might be served by treating the consent as invalid fruit.

We think such an argument is untenable on the facts of this case and we think that that result is clear from this Court’s decision in Brown against Illinois.

In Brown, the Court asked the question whether the statements there obtained by an illegally arrested individual after he had been given Miranda Warnings, but during a period of illegal detention were obtained by exploitation of the illegality of his arrest.

The court rejected any “but for” rule that said simply it would be enough for the defendant to show that he might not have made the statement or here he might not have consented had he not been arrested.

Instead it looked at exploitation of illegality.

It looked at the behavior of the officers in the case, particularly said the Court at page 13 of the slip opinion, the purpose and flagrancy of the official misconduct.

In the present case, there was not and there could not have been any exploitation of the illegality that existed in the present case.

The illegality, if there was any, was not that they have no right to arrest him as such, not that there was not adequate justification for taking Mr. Watson into custody, but that they did not possess a warrant.

Now, of course their possession are non-possession of a warrant can have no possible bearing on whether or not a consent would be given to search of the automobile.

Consequently, it seems to me quite clear that they could have been in the circumstances of this case, no exploitation of an illegality for the purpose of obtaining a consent and that under Brown, I think is the pertinent criterion.

So I think in this case we have the consent as an independent voluntary act, untainted by any legality that there may have been in the arrest.

Finally, in connection with the consent issue, I would like to point out that respondent did not testify at the suppression hearing.

He never got up and said one word about the involuntariness, one word about his state of mind in granting the consent.

There was no contradiction of the inspector’s version of the events.

Now, unless there is to be a per se rule, I think that a defendant is going to have a very difficult time establishing voluntariness without getting on the stand and then of course, there are no self-incrimination problems because his testimony at the suppression hearing could not be used against him in the trial.

So we do not have Fifth Amendment justification for not taking the stand and I submit that ordinarily, unless the other evidence demonstrates plainly that the consent was involuntary that the absence of testimony by a defendant would be a very significant factor in the voluntariness inquiry.

So for all of these reasons, we request this Court to reverse the judgment of the Court of Appeals and to reinstate respondent’s conviction.

I will reserve the balance of my time for rebuttal.

Warren E. Burger:

Very well Mr. Frey.

Mr. Nasatir.

Michael D. Nasatir:

Mr. Chief Justice and may it please the Court.

The last part of petitioner’s argument in this case I think states and clearly states how the petitioner is misstated the issue in this case.

The issue in this case is not whether the police had time to get a warrant and just because they waited six days, they had to get a warrant for petitioner’s arrest.

Michael D. Nasatir:

The issue in this particular case is that the prosecution failed to carry its burden as it had, as it did not produce a warrant, failed to carry its burden on these particular facts and in these particular circumstances.

Of course it failed to carry its burden on the two crucial points.

William H. Rehnquist:

Failed to carry its burden where, in the District Court or the Court of Appeals?

Michael D. Nasatir:

In the District Court and the Court of Appeals.

William H. Rehnquist:

Does the District Court order suppression?

Michael D. Nasatir:

No, excuse me.

Just in the District Court at the hearing.

William H. Rehnquist:

You mean just in the Court of Appeals, do you not?

Michael D. Nasatir:

No, I mean just in the District Court, In the District Court at the hearing, the prosecution had the burden of proving (1) that the arrest was legal and proper and was made with probable cause since they did not have an arrest warrant and (2) that the consent to search was voluntary because the respondent was in custody at the time.

So, on each of those two points, they failed to carry their burden.

William H. Rehnquist:

Well, did the District Court suppress or not?

Michael D. Nasatir:

The District Court did not suppress the evidence.

William H. Rehnquist:

So the District Court found in favor of the government?

Michael D. Nasatir:

That is correct.

Of course the District Court did not have the benefit of this Schneckloth decision at that time.

It did not have the benefit of the Brown decision at that time and it did not have the benefit of some of the later cases which has clarified this Court’s thinking on that very issue.

And I think the District Court erroneously and I think even the Court of Appeals erroneously considered that this was a probable cause arrest and that the probable cause was sufficient.

But of course, that was decided against us and although we asserted as alternative ground is not our primary issues.

What I would like to make clear to the Court today is, what is the issue in this case and what was the decision of the Court of Appeals at the Ninth Circuit?

The Ninth Circuit did not establish a per se rule as to all situations that an arrest warrant.

If you have time to get one, you must obtain one or the police must obtain one.

What the Court of Appeals did was said in this particular situation where Inspector Barbarick waited six days, where there was time to get a warrant and where the prosecution in caring its burden could not point to one exigent circumstance where a warrant would be excused and in this particular case a warrant is not excused and a warrant was necessary.

Thurgood Marshall:

What can you do about the government’s position that it was exigent at the time that he was committing the last crime?

Michael D. Nasatir:

It might have been exigent at the time he was committing the last crime —

Thurgood Marshall:

As a matter of fact, he was not convicted on the first one at all.

Michael D. Nasatir:

That is correct.

But that of course was later and I think —

Thurgood Marshall:

You do not see any significance in that?

Michael D. Nasatir:

I do not see any significance because the officer at the scene did not see any significance in that.

Obviously, what happened here is the officer at the scene did not trust his own informant, especially when he found out after he searched him.

Thurgood Marshall:

And then when he saw the crime committed in his presence —

Michael D. Nasatir:

He did not see a crime committed in his presence.

Thurgood Marshall:

Yes, he did.

Michael D. Nasatir:

All he saw was –-

Thurgood Marshall:

He saw the possession?

Michael D. Nasatir:

All he saw in his presence was a cigarette being lighted.

As soon as he started to validate —

Thurgood Marshall:

What did the cigarette being lit mean?

Michael D. Nasatir:

That the respondent was in possession of stolen credit cards which is a crime.

But Your Honor, as soon as he patted down the respondent, he found out that they did not have credit cards.

And obviously, since he said that the only reason he arrested the respondent was because of that lit cigarette, I mean, was because of the prior crime he did not even trust the lit cigarette.

I think this is important.

Thurgood Marshall:

Were the credit cards in the car in his possession?

Michael D. Nasatir:

The credit cards were in his car.

Thurgood Marshall:

Was that in his possession?

Michael D. Nasatir:

The Court found they were in his constructive possession, yes Your Honor.

Now, what Inspector Barbarick and this I think is crucial, when he saw that lit cigarette, he did not trust that lit cigarette.

He did not feel that there was new crime being committed or he would have arrested on probable cause for that new crime which he had an absolute right to do.

There is a crime being committed in his presence.

There is a reasonable possibility of escape, but what he did he relied on a crime that was committed six days ago and I think this issue is important because of the straw man which the solicitor general has set up in this case.

He says all the deleterious effects that a warrant would have, he says that a warrant would encourage an investigation, a further investigation that no warrant would leave the police free to conduct the further investigation and to collect more evidence to be sure that they had the right men, that they could collect more information and be sure that they could collaborate the informant, that they could collect more information so that they could clear innocent people.

But on these facts, you can see what human nature is and I think you can see the reason why the Fourth Amendment and all case law has required warrants in these situations where a policeman has a time to reflect.

William H. Rehnquist:

Well, you say that all cases have required warrants in this situation, were you talking about arrest and not a search?

Michael D. Nasatir:

That is correct Your Honor.

I think —

William H. Rehnquist:

Is there any case from this Court?

Michael D. Nasatir:

Well, I can say the Fourth Amendment —

William H. Rehnquist:

Well, you said cases.

What cases from this Court are you talking about?

Michael D. Nasatir:

The cases from this Court are the Rabinowitz case, the Trupiano case, the Brown case, all the cases which —

William H. Rehnquist:

Those are searches?

Michael D. Nasatir:

Absolutely searches, but are we going to say that a search of items or objects are more of an intrusion on a person’s privacy which I think anyone will admit the Fourth Amendment is designed to protect, are they more of an intrusion on a person’s privacy and a seizure that person himself.

When you look at the —

William H. Rehnquist:

Supposing you get back to answering my question, which is about the cases that you said a moment ago held that all that warrant was required for arrest?

Michael D. Nasatir:

A warrant is required where there are —

William H. Rehnquist:

What cases are those?

Michael D. Nasatir:

Your Honor, there are no cases which —

William H. Rehnquist:

But you said a minute ago that all of the cases held that.

Michael D. Nasatir:

All of the cases hold that in a search and seizure situation —

William H. Rehnquist:

Well, you did not qualify that way when you said it?

Michael D. Nasatir:

Well, Your Honor, an arrest is a seizure of a person.

That is all it is.

That is the only thing an arrest is.

William H. Rehnquist:

But there had been numerous cases from this Court that hold probable causes sufficient for an arrest of a person, have there not?

Michael D. Nasatir:

There have been the probable cause where there exigent circumstances, certainly and in every case where they have held that an arrest is proper, there have been exigent circumstances.

Now, in a couple of cases —

Potter Stewart:

What are those cases?

Michael D. Nasatir:

In Trupiano for example.

The officers saw an ongoing crime, committed exactly in their presence which is the situation that Mr. Justice Marshall spoke about, a crime being committed in their presence which they had the perfect right to stop and to arrest the person without a warrant even when he was on his premises.

They look through that window; they saw the man operating a still.

They had a search warrant in that case and they presented the facts as to probable cause.

Potter Stewart:

There had been many cases in which the validity of the arrest has been assumed, but —

Michael D. Nasatir:

Exactly Your Honor and Mr. Justice White, in a dissent and I do not have the case to cite to you at the present time, but in a dissent, he says that really it has been assumed that arrest have been made with exigent circumstances because in actuality this is an unusual case.

In most cases, in arrest situation, there are exigent circumstances which exist.

Exigent circumstances apply to movable objects and what is more movable than a human being.

But in this case there was not a movable human being. In this case, the officer knew he could get a hold of Mr. Watson.

He in fact set up a meeting where he knew Mr. Watson would show up and Mr. Watson did.

He had control over Mr. Watson.

He did not rely upon a crime that was being committed in his presence.

He relied upon facts that occurred six days prior to this.

Warren E. Burger:

How did he know that he was going to be present except to he was invited or an appointment had been made?

Michael D. Nasatir:

Well, certainly he did not know but obviously when Mr. Watson showed up —

Warren E. Burger:

He did not know about it?

Michael D. Nasatir:

He had the feeling and when Mr. Watson showed up, his feeling was confirmed.

There was no danger of Mr. Watson escaping.

You see Your Honor, what has happened in this case and in this case alone is the prosecution just failed to carry its burden.

If they had asked Mr. Barbarick or Mr. Barbarick had really felt that he was arresting for an ongoing crime, he could have said so.

If Mr. Barbarick had felt that there was danger of escape of Mr. Watson, he could have said so. If Mr. Barbarick had felt that he was protecting the safety of property or other persons, and he had to do that by arresting Mr. Watson, he could have said so.

He never said so.

What he did say was he arrested for a crime that was six days old.

What he did not do are all of the things that the solicitor general says an investigator will do if he is given the time to reflect.

He did not check out his informant.

He did not look for fingerprints on the credit card.

He did not look for the innocence of Mr. Watson.

He did not try any other investigative techniques.

He sat back and tried to set up a situation where he caught Mr. Watson “dirty” with other credit cards.

But then when he saw the signal from his own informant, obviously he did not trust that and relied upon a situation which was six days old.

We are not talking about time in this case, time only, but we are talking about is an opportunity to obtain a warrant without exigent circumstances.

Thurgood Marshall:

Do I understand you that if he said I will arrest you for having a credit card on your possession as of this time, everything would be alright?

Michael D. Nasatir:

I would not concede that there would be probable cause under that situation Your Honor, but I would concede that that would be a ground, that would be an exigent circumstance if there was probable cause.

Thurgood Marshall:

So the only problem is he did not say that?

Michael D. Nasatir:

No, the only problem is he did not rely on his informant.

He relied upon a situation which was days old.

Now, he could have said he thought Mr. Watson was going to escape, but he did not.

Obviously, he did not think so or he would have said so and he could have said any of the other things, but obviously he did not think so.

This Court has said many times that we want to involve the judiciary and magistrates in our machinery for search and seizure.

If —

Harry A. Blackmun:

If everything is so obvious, do you really mean that?

Michael D. Nasatir:

In the decisions that I have read in this Court, I think Your Honor that every Justice sitting on the Court have said that we want to encourage warrants and we want to encourage involvement of the judiciary in arrest situations.

We want to interpose a magistrate’s detached opinion between the officer who is actively involved in forwarding out crime and whose ego and everything in his personality is involved, we want to interpose a neutral detached magistrate to help him out to see if he has probable cause, to confirm probable cause and issue a legal process so that a person can be arrested.

Michael D. Nasatir:

In many arrest situations and the reason why this litigation has not reached this Court is because usually in an arrest situation, it is an easy burden for the prosecution to carry.

And as Mr. Justice White said in the dissent I spoke about.

It has not been litigated because people assume exigent circumstances in most arrests situations.

But you have here are no exigent circumstances.

And what you have here is this is maybe the one case where you are harking back to the Fourth Amendment and you say that the seizure of a person is more important or at least just as important as the seizure of an object.

You see, Coolidge would mean if we would not require a warrant to arrest a body, a person, to deprive a person of his liberty, we could say, well, you cannot seize the car in Coolidge because there is no warrant, but you sure could seize the driver if you are sitting behind the wheel which seems to me in congruous and I do not think that this Court ever meant to differentiate between searches and seizures.

And why, we must ask ourselves, does the solicitor general play so much emphasis on an arrest on private property?

Once again, do we extort private property or possessions over the actual person, over the actual liberty of the human being?

William H. Rehnquist:

Well, certainly one reason for distinguishing private property is that that is a fact situation which was deemed to important in Coolidge as to the situs of the car?

Michael D. Nasatir:

Right and the only reason that it was deemed important in Coolidge and the only reason private property is deemed important in any situation as the Katz case makes clear Your Honor is because of the interest that people have in their property and in that privacy.

If nobody was involved, if no person was involved in that private property situation in Coolidge, we would not care about it.

We would not be worried about it.

So when the person —

William H. Rehnquist:

What do you mean, if no person were involved?

You mean if there had been nobody at home, it would have been perfectly alright to search the home?

Michael D. Nasatir:

No, if no one owned that car, like an abandoned car, if it was an abandoned car, if no one had an interest in it, if no one owned that home or lived there.

A home is only a shell around the body.

Katz made clear that what you are talking about, when you are talking about the protection of privacy and property is the person who owns it, who has an interest in it.

Those are our reasons for standing.

Those are our reasons for the protection of the judiciary in these situations at all is that person.

The difference between this situation and why it has not been brought up in many cases before this Court is because usually the police have an excuse for justification, for arresting a person —

Thurgood Marshall:

(Inaudible) both statements on what police usually do?

Michael D. Nasatir:

Well, really the —

Thurgood Marshall:

Well that is the (Inaudible)

Michael D. Nasatir:

No, the only authority that I have is Mr. Chief Justice White’s statement that this has never been litigated because people are not litigated much because people assume that there are exigent circumstances and —

Thurgood Marshall:

Why did you not cite that, instead of bring it out of the air?

You should cite that gave rule, that the usual rule is that a police officer may arrest without a warrant.

One believed by the office of unreasonable cause to have been guilty of a felony?

Michael D. Nasatir:

Certainly that is the usual rule, but there must be exigent circumstances.

The constitution —

Thurgood Marshall:

I do not see any exigent circumstance in what I have just quoted to you, and you will find that in Carroll against United States?

Michael D. Nasatir:

In Carroll versus United States?

Thurgood Marshall:

Yes.

Michael D. Nasatir:

Certainly in Carroll versus United States, but you will also find exigent circumstances in Carroll versus United States.

Thurgood Marshall:

It is not in that phrase, is it?

Michael D. Nasatir:

It is not in that phrase, but that is what Carroll is all about, the moving vehicle.

Thurgood Marshall:

I see.

Michael D. Nasatir:

And that is what Carroll has been cited for in many, many years, it is the moving vehicle in exigent circumstances.

Thurgood Marshall:

But that is the usual rule?

Michael D. Nasatir:

That has been —

Thurgood Marshall:

The usual rule does not have exigent circumstances in it?

Michael D. Nasatir:

But the case did and the usual case has exigent circumstances.

Thurgood Marshall:

The usual facts?

Michael D. Nasatir:

The usual facts do.

Thurgood Marshall:

You want to tell us that where a man is committing a crime that exigent circumstances got to be shown?

Michael D. Nasatir:

Not where a man is committing a crime in the officers presence.

Obviously the officer has —

Thurgood Marshall:

Was he not possessing a credit card illegally in the officer’s presence?

Michael D. Nasatir:

He was.

That is what the informant signal meant to the officer.

That is correct, but the officer did not believe it Your Honor.

Thurgood Marshall:

But the officer (Inaudible)

Michael D. Nasatir:

He did not move on that.

What he moved on was the situation that arose six days earlier.

The past crime.

Thurgood Marshall:

(Inaudible)

Michael D. Nasatir:

That crime was possession of stolen mail also, but that was a different crime.

What he tried to do was set up a new crime.

What happened was he was not sure.

If you allow this type of situation Your Honor, you allow a situation which and what want to get to now is the consent where a person can be arrested and his consent can be obtained.

(Inaudible)

Michael D. Nasatir:

And I would like to talk to you about it Your Honor.

Your Honor, in this type of situation since the officer did not find the credit cards on the person or did not believe his informant’s signal, obviously, what he wanted to do is set up a situation where he could arrest Mr. Watson with the credit cards on him.

He patted him down.

He searched him.

He did no have the credit cards.

Then he advised him of his Miranda rights immediately after taking him out of a restaurant and the reason he took him out I think is important, that things were getting excited in the restaurant and things were getting confused in the restaurant.

It was confusing, exciting situation.

Potter Stewart:

Why do say that he did not believe the informant when the informant lit up the cigarette?

Michael D. Nasatir:

Because he did not rely on it.

He relied on the information that he had received six days earlier.

Potter Stewart:

But was it that triggered his approach to the respondent, was it not and the arrest?

Michael D. Nasatir:

Not the arrest Your Honor.

The arrest was triggered because of the past crime that the officer had.

Potter Stewart:

But why do you say that?

Michael D. Nasatir:

That is what the officer said on the stand.

That is what the prosecution in attempting to carry their burden in this case said.

This comes from the prosecution’s evidence not those of — that of the respondent.

Potter Stewart:

But it was arranged, that it was pre-determined that the signal should be the lighting of cigarette?

Michael D. Nasatir:

That is correct.

Potter Stewart:

And when the cigarette was lighted, his friend, the officer approached the respondent and arrested him?

Michael D. Nasatir:

That is correct.

Potter Stewart:

The objective facts would seem to indicate it, but for you the arrest was the signal, a pre-arranged signal?

Michael D. Nasatir:

That triggered the approach Your Honor which triggered the arrest according to the officer’s own testimony was that prior crime and not the signal and I think there is distinction between the approach of the person and the arrest.

Now —

So when it was signaled it was entirely irrelevant?

Michael D. Nasatir:

The signal only pointed in time the approach of the officer, that is correct, that is correct.

I think relevant to this issue by the way is the fact that the officer in the six days never attempted to collaborate his informant in any way.

He had a handwriting exemplary of my client, the respondent.

He had fingerprint exemplary of my client.

Michael D. Nasatir:

He never corroborated that his fingerprints were on the credit card or that his handwriting was on the list that was given to him by his informant.

Warren E. Burger:

That statement assumes that after various people have handled the credit card, the fingerprints of the first man would still be discernible, does it?

Michael D. Nasatir:

Yes, it does.

Warren E. Burger:

But is it very likely?

Michael D. Nasatir:

It is possible —

Warren E. Burger:

It has been handled by first, the informant then by the detectives and other the people?

Michael D. Nasatir:

Well, Your Honor, in careful police work, the detective would have not handled it of course.

So, it would have just been handled, if the informant’s facts were true, it would have just been handle by the informant and the respondent so that the fingerprints still would have been there, if Inspector Barbarick had used those six days to check those facts up.

In the consent situation, he was placed in custody, handcuffs were placed upon him, he was given his Miranda rights.

His Miranda rights of course do nothing to vindicate his Fourth Amendment Rights as was made clear by Brown.

So the first analysis I think is if you hold that arrest was illegal because of the failure to obtain a warrant in this unusual circumstances or because the prosecution failed to carry its burden of showing exigent circumstances to excuse that warrant, then it is certain under these facts that this was a fruit of that illegal arrest.

There was very few minutes in between the arrest and the consent.

There was clearly no warning that would attenuate the taint —

(Inaudible)

Michael D. Nasatir:

My client said yes.

(Inaudible)

Michael D. Nasatir:

Oh! That is consent Your Honor, but is a voluntary consent.

(Inaudible)

Michael D. Nasatir:

That is correct.

(Inaudible)

Michael D. Nasatir:

That is correct.

(Inaudible)

Michael D. Nasatir:

Not to my mind, not in this situation Your Honor.

(Inaudible)

Michael D. Nasatir:

No, what you would need for consent is the specific warning.

Now, Mr. Watson —

(Inaudible)

Michael D. Nasatir:

That was the warning about what would be done with it, but there was no warning of his right to refuse.

The fact of it being used against him does not indicate that he had a right to refuse and it has always intrigued me in the Miranda situation that you tell a person that he does not have to talk to you and then you immediately start asking him questions.

Now, what is he to assume for that?

Michael D. Nasatir:

Is it to assume that he has the right to refuse from the fact you tell him you do not have to talk to me and you immediately ask him questions?

And also Your Honor, I think you should —

Thurgood Marshall:

It is different from the Miranda, this man says specifically whether about finding that car I am going to use?

Michael D. Nasatir:

That is right.

Thurgood Marshall:

And he said, despite that go ahead and take it and use it, that is what in substance he says?

Michael D. Nasatir:

But he never said you have the right under the constitution not to let me go in there.

I will use it against you, but you have the right not to let me go in there.

If Inspector Barbarick really wanted to be fair in this case to Mr. Watson and really wanted –- your dissent in Brown Your Honor, you stated —

Thurgood Marshall:

That is what I said.

Michael D. Nasatir:

No question about it, but I think you correctly stated that –-

(Inaudible)

Michael D. Nasatir:

Excuse me?

(Inaudible)

Michael D. Nasatir:

No, no.

(Inaudible)

Michael D. Nasatir:

No, I am just talking in favor of a principle that an informed choice must necessarily be made by a person who is aware of his choices.

Thurgood Marshall:

(Inaudible) And in this case, he did tell them, so that takes that dissent out of your picture?

Michael D. Nasatir:

I think —

Thurgood Marshall:

Right?

Michael D. Nasatir:

No, because I think telling a man that you are going to use it is different from telling him that he has the right to prevent you from getting it in the first place and I think there is a significant difference in that Your Honor.

But there are three analyses and what the Court of Appeals did in the case below in their totality of –- First, it can be analyzed under the Fruits Doctrine as stated in Brown to protect the Fourth Amendment Rights.

But to protect the Fifth Amendment rights involved in this case, what the Court of Appeals did is consider both sides of the coin which is I think the correct analysis under this Court’s opinion.

They considered the effect of the possible coercion on the respondent.

They also considered the police conduct.

William H. Rehnquist:

You said to protect the Fifth Amendment rights; you mean the privilege against self-incrimination?

Michael D. Nasatir:

Privilege against self-incrimination and the right to due process.

William H. Rehnquist:

Oh! I did not realize that was involved too?

Michael D. Nasatir:

I think it is involved too.

It is a custody situation.

It is a situation where a person, where the police had in effect extracted the words I consent from my client.

Michael D. Nasatir:

Under that situation, it is a Fifth Amendment analysis.

William H. Rehnquist:

You mean when he says, I consent, he has incriminated himself?

Michael D. Nasatir:

Under that analysis yes.

And also under —

William H. Rehnquist:

Under that analysis, yes, but under any other analysis that has ever been supported by any judicial decision?

Michael D. Nasatir:

I think under the Katz decision, Your Honor where they say that an intercepted conversation is the same an intercepted —

William H. Rehnquist:

But that is a Fourth Amendment case?

Michael D. Nasatir:

That is a Fourth Amendment case.

William H. Rehnquist:

Well, I thought you said that if the police officer says to your client will you let me go in your car and he says yes, I will, that his statement “yes, I will” incriminates himself?

Michael D. Nasatir:

It incriminates himself, but the main argument of course is the Schneckloth volunteer in this argument.

William H. Rehnquist:

But tell me just why you think it incriminates him under our cases?

Michael D. Nasatir:

Because it is a response where he does not have to give one, leading to, tending to incriminate himself.

Leading to evidence that will incriminate himself by his own statement.

When he says I consent, that allows the officer to get evidence from the automobile.

But also Your Honor, obviously, the Fifth Amendment analysis goes to the voluntariness question.

What the Court of Appeals in this case was saying is that you cannot ignore the situation which has brought about the custody in determining the totality of the circumstances when you are looking at the voluntariness question under the Fifth Amendment and in not ignoring the situation which brought about the custody, they took a look at the police conduct as well as it its effect on that person.

And under that analysis, you can apply to the facts of any case and certainly it is not a per se rule as to consent.

It allows the Court and Courts in general to look at all the circumstances, including the situation which brought about the consent as well as that situation’s effect on the person and its voluntariness.

Lewis F. Powell, Jr.:

Mr. Nasatir, do you think this consent could have been exculpatory in the minds of your client?

In other words, he seemed confident that the police would find nothing, if the police found nothing they well would have not arrested him?

Michael D. Nasatir:

Your Honor —

Lewis F. Powell, Jr.:

Unlike a confession in that respect, is it not?

If one consents to search, do you not think the chances are that he thinks nothing would be found that incriminates him?

Michael D. Nasatir:

Mr. Justice Blackmun, excuse me, Mr. Justice Powell, I am sorry.

My client was sitting down to dinner one minute and was arrested in handcuff the next.

He was then given rights which related to his right not to incriminate himself and then immediately asked the question that lead to his incrimination.

Under those circumstances, certainly human-beings react in a variety of different ways and one of those ways might be false bravado.

Certainly the way, the human-beings react is not to look at the officer in the eye in stony silence which would be rude, which would be in Congress with a question.

That is not the way human beings usually react.

Sometimes some of them react as did Mr. Watson here obviously with false bravado rather than with informed awareness of his right to refuse to consent.

Michael D. Nasatir:

If it had been certainly a lawyer under arrest or someone who was informed of his rights, he would have said I refuse to consent to a search of my automobile.

Warren E. Burger:

The one you are arguing that that the constitution requires a policeman to protect a man in this situation from which you call his urge to engage in false bravado?

Michael D. Nasatir:

Only to adequately inform him of his choices Your Honor.

Only to make sure that he is aware of what his choices are and that one of those choices would result in his keeping the officer out of that automobile.

Thurgood Marshall:

Of course he had worked with the same inspector, had he not?

Michael D. Nasatir:

He certainly had your Honor.

Thurgood Marshall:

So he knew a little bit.

As a matter of fact, he said I know my rights, did he not?

Michael D. Nasatir:

No sir.

Thurgood Marshall:

Did he not?

Michael D. Nasatir:

Yes, in response —

Thurgood Marshall:

“I know, do not bother Frank.

I know my rights?

Michael D. Nasatir:

Obviously, he did not know about his right to consent.

Thurgood Marshall:

Well, he said so.

I know.

Warren E. Burger:

How do you — what is the basis for you making that statement that he did not know about his right?

Michael D. Nasatir:

Because he allowed the officer to go into a car where he knew incriminating evidence was under the evidence in this case.

Warren E. Burger:

Well, I thought you had just describe that a false bravado a few minutes ago.

Michael D. Nasatir:

It was false bravado.

Obviously —

Warren E. Burger:

He tried not to be false, but perhaps he hoped they would not look under the floor board?

Michael D. Nasatir:

That is a possibility Your Honor, no question about it.

I think this case shows the propriety and the reasons why warrant should be required.

Without requiring warrants in a case such as this, there will never be an incentive for the police to get warrants in an arrest situation where warrants are required.

Respondent admits that vast majority of arrest situations; a warrant will not be required because exigent circumstances are present.

Potter Stewart:

That is arrest in a public place?

Michael D. Nasatir:

In a public place.

No question about it and I admit that, but not in this case.

Not in this case where the man waited six days and showed why warrant should be required because he did intend to try to corroborate his informant.

Michael D. Nasatir:

He did not investigate further.

He did not investigate to clear my client.

He did not do any thing except try and set up a situation to get a new crime which he did not get in his own mind and he arrested for the old crime.

Under those circumstances the prosecution in this case did not carry its burden on either issue.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Frey?

Mr. Andrew L. Frey:

One or two brief points Mr. Chief Justice.

First of all on the question of the basis for respondent’s arrest, Inspector Barbarick never denied that he was arresting for the other purposes.

He is simply announced at the time he made the arrest then he testified at the suppression hearing that the arrest was made on the basis of the old credit card.

Of course at that point, he had not yet found the other credit cards which might explain why he was basing it on the old credit card.

Potter Stewart:

Well you do not test the validity of an arrest, but ultimately it turns out (Voice Overlap) do a search.

Mr. Andrew L. Frey:

I agree if he have not had the —

Potter Stewart:

Whether or not he had any cards had nothing to do with the reason he made it.

Mr. Andrew L. Frey:

It would not affect whether or not he had probable cause, but the point I want to make is that even if he subjectively believed he was arresting for the old credit card, the existence of probable cause with respect to the additional stolen credit cards would support the arrest and there are several cases that hold that that I would like to call for the Court’s attention in light of the argument that has been made.

In United States against Martinez, a second Circuit decision 465 F 2d 79 and Ramirez against Rodriguez, 467 F 2d 822, a Tenth Circuit decision.

There are some others, but the point is there that if the officer believes he is arresting for one offense for which he does not have probable cause, but in fact the facts known to him give him probable cause to arrest for a different offense, the arrest is lawful.

Similarly if an officer is proceeding under warrant which turns out to be invalid, the Court then looks to see whether probable cause existed for the arrest and indeed that was the analytical approach taken in the Coolidge case by this Court.

Now, also as a practical matter, the suggestion is that in the vast majority of cases, this warrant requirement would not apply because in most cases there would be a danger of escape or something of that sort.

But of course there are holdings in the search and seizure area that exigent circumstances at the moment you under take the search may not be enough to support the search if you had an opportunity prior there to obtain a warrant.

The case that comes immediately to mind is Vale against Louisiana in which it was clear once Vale was arrested on the doorstep of his house, that there were indeed exigent circumstances for searching his house.

If the Court said that could not justify the failure to obtain a search warrant before going, so that the logic of respondent’s principle would have a substantially broad impact and it is not just a very narrow, small category of cases that would be effected.

As for the desirability of getting the courts involved in this, it seems to me that runs contrary to the Robinson case which recognized that there were certain principles in the law of arrest that were well established and that it was undesirable to disrupt those principles and to introduce a whole new realm of litigation.

Finally on the false bravado point, the record shows that the search actually took 15 minutes before the envelope was found, and certainly it was not obvious to Mr. Watson that the inspectors would find the envelope.

I have nothing further.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.