Vale v. Louisiana – Oral Argument – March 05, 1970 (Part 2)

Media for Vale v. Louisiana

Audio Transcription for Oral Argument – March 04, 1970 (Part 1) in Vale v. Louisiana


Warren E. Burger:

Arguments in Number 727, Vale against Louisiana.

Mrs. Korns, you may proceed whenever you’re ready.

Louise Korns:

Mr. Chief Justice and may it please the Court.

Just to briefly recap the factual situation here, three New Orleans police officers went to 1826 O. St. in New Orleans bearing two arrest warrants for Donald Vale involving prior narcotic crimes.

They wanted to be sure that the accused is at this address before serving these warrants.

They knew that Mrs. Vale, his mother and his brother Donald live there and they want to elate Donald have him take off again.

So, they parked their car about half a block from the house and watched it and they saw about 15 minutes later they saw a transaction take place between a man, Saucier who approached the house in a car and Donald Vale who came out of the house and apparently sold narcotics to this man in the car.

So, they approached the car, arrested Donald Vale and Saucier.

Donald Vale, as he got close to go back in his house arrest them for possession of narcotics.

First, meanwhile they had seen as they approached, they had seen the man in the car put something in his mouth and swallow it which to experienced narcotics officers like this just meant one thing that he was swallowing narcotics.

So, after they arrested the man in the car and Donald Vale, they frisked and briefly found nothing on them, no weapons, no narcotics.

And then the police officers the record shows told Donald Vale that they want to go in and search his house.

The door to which he had left open in coming out to make this sale to find the narcotics that they were sure were the source of this supply that he had passed on to Saucier.

Thereupon, they entered the house.

Shortly thereafter within minutes thereafter Mrs. Vale and Donald’s brother James entered the house and the police officers informed them also they were going to make the search.

And the within five or ten minutes in the back bedroom which appear to be a man’s bedroom, the police officers testified they found the heroin and Dilaudid they were seeking in the coat, several coats hanging in a closed locker.

The State of Louisiana believes that following the legal arrest which clearly took place here in front of the house, the police officers were entitled to make an incidental search.

Potter Stewart:

Was the arrest legal because of the capias that the officers had or was it legal because of what they have seen that apparently Donald Vale?

Louise Korns:

What they had seen Mr. Justice Stewart.

We don’t rely at all on those capiases there’s no — the State of Louisiana feels that if they fade out the picture as far as this search went.

They only served is adding probable cause for the warrantless arrest because they were for prying narcotics offenses which had occurred a couple of weeks before and more over.

At least one of these three offices had been involved, the record shows in those prior arrest and the record also shows that, at least one or more of these officers had not only arrested Donald Vale either been a connect with these prior narcotics arrest that were familiar with him in his narcotics transactions, knew Saucier the man to whom he was apparently selling, knew that this house was lived in by Mrs. Vale, Donald’s mother and his brother James.

The record shows that they knew that.

So the State of Louisiana is not relying at all on these capiases for this arrest, but only on this warrantless arrest which took place before the house.

Potter Stewart:

I see.

Thank you.

Louise Korns:

Now, the evidence shows that the police officers didn’t know who was in that house when they arrested Donald and Saucier in front.

It shows that officers were very concerned with the idea that at this very moment either Mrs. Vale or brother James or Donald’s girlfriend who traveled around with him to various addresses was right at that very time getting either hiding the narcotics, taking him out the backdoor, disposing of them in some way.

So, as Louisiana sees it.

There was the dilemma faced by these officers and they either had to seize this evidence right now or not at all because I know yesterday the Court was opposing the problem of whether there were any alternatives to an immediate warrantless search and as a practical matter it’s Louisiana’s position that there were no practical alternatives because of the time involved in getting a warrant and the fact that — One thing is clear, not knowing whether anyone was in the house or not, the officers had to enter the house and search it fairly thoroughly to find out even if whether someone else was in the house because confederates often hide in closets and under beds as this Court knows and it was only about fairly thorough search of the house that the officers could even determine that there was no one in the house to dispose —

Potter Stewart:

Confederates generally don’t hide in somebody’s coat pocket?

Louise Korns:

No that’s perfectly true, that’s right.

But they had to make a search of the house in fair detail to be sure that no one was hiding in the house, in closets, in rooms, and so forth and under beds.

Warren E. Burger:

Well, do you think they were entitled of that point to search for firearms to see whether they were exposed to any danger from occupants of the house?

Louise Korns:

Well, actually I think the question of firearms I guess is always lurking in the background but with what narcotics addicts generally, I don’t think weapons are generally involved in these crimes.

I think mostly it’s the police officers they’re concerned and the record here shows with getting to the evidence before the people involved with the narcotics can get rid of it just like in this case, Saucier got rid of the narcotics which Vale had just sold in by swallowing.

And the officers, the record here show that they rushed first to the bathroom to listen for the sound of running water when they approached, they testified that and looked around in the toilet bowl and so forth because looked in the basin and in any drain like that where narcotics could be disposed off.

So, really I think — I don’t think I will be frank and say no I don’t think the officers were afraid that they’d be shot at from the house or anything.

I think their primary and only purpose was to try to get hold of this narcotics which they were convinced Donald Vale, they just seen him sell but because of Saucier swallowing that evidence they — because that would have been there right there if Saucier didn’t swallow the evidence and arrested Vale for this present narcotics sale and the Saucier had the evidence that would’ve been it.

Hugo L. Black:

Have the officers testified they were not looking for weapon?

Louise Korns:

Your Honor, it didn’t even come up there is —

Hugo L. Black:

They haven’t been testified at all of that?

Louise Korns:

And that’s right, there is no testimony at all on that subject and really I don’t think it — you know was a matter in which anyone on either the defense or the accuse were interested at the trial of this case for instance only —

Hugo L. Black:

Do you think officers going into a place like that push the others to see and whether or not there might be a gun?

Louise Korns:

Well, sure I mean I think they — I don’t think there is concerned no with guns for narcotics addicts as they also for say burglary suspects are people who commit crimes of violence.

There’s no doubt about it when they — when they frisked down Vale and Saucier.

When they first arrested them, they — I think the record will show maybe that they were frisking for possibility of weapons or narcotics, but they did testify that they wanted to go in that house because they were sure that that’s where the hoard of narcotics were.

Potter Stewart:

As — well, when they were in the house as I understand it except for this appellate here when they just arrested there was nobody in the house?

Louise Korns:

That’s right, the thing is that they didn’t know that though Mr. Justice Stewart until they had gone all through the house to be sure because they knew that Mrs. Vale and James live there and then of course when Mrs. Vale and James showed up within about five minutes after the officers got in the house has but before they’d found the narcotics.

Then, the only other place they could’ve been hiding in there was Donald’s girlfriend, but I think by that time they’d run through the house enough to be sure that nobody was in the house.

But they didn’t know this until they got in.

Potter Stewart:

And the fact is there was nobody in the house?

Louise Korns:

The fact is there was nobody, but they have no way of knowing this.

And as a matter of fact as I say the record shows that they positively knew that somebody could be there.

Now, the State of Louisiana just wants to oppose to this Court the practical difficulties involved if the police were going to get a warrant to search for this narcotic evidence.

As I say, they first had to get into the house to be sure no one was hiding in there or would’ve done no good to put a cord in around the house without first finding out there was nobody in it.

Having found out that the only two people on it were James and Mrs. Vale then they would’ve had to call in other police officers to keep these people under surveillance.

Their movements under complete surveillance are to keep — take them out of the house during the time in which they took them to get a search warrant.

And in owing to perish at least, search warrant issued by criminal district court judges and at least one of these arresting officers because only they three knew the facts would’ve had to go back to the police bureau and typed up the affidavit.

And you have to type up an affidavit for a search warrant in about six duplicates.

Louise Korns:

Police officers don’t reduce probable cause to writing with the greatest to speed.

It’s been my experience these men often have all kind of reasons why they do things.

They’re not the most articulate people in the world particularly when they have to write down and often in the past they used to put down too little but now because Court decisions throw out worst they put down much too much.

They put down everything they’ve seen and gone and so forth and so it runs on for pages.

Then, they’ve got to find the judge to study this warrant and find out whether it’s stays probable cause and if he’s in his court or in his chambers and busy they have to wait, and then present it to him and if he’s going home then they have to track him down and find him and I think at the best with everything going in your favor takes at least three hours to process a search warrant.

And often it takes a whole day before you can get the whole thing typed up and the judge satisfied and signed and back and served the copies.

You have to give one to another clerk’s office so they’ll know what property they’re going to seize and then make returns and so forth.

So really you know these the officers, the record here shows that the officers approached Donald Vale’s house around noon with luck they could very well have been back with the search warrant later to that afternoon.

But if any little interference had come up for some reason or another they might not have been back until the next day and unless they had kept these people under close surveillance, they would’ve been any narcotics evidence left in that house when they got back.

And also —

Potter Stewart:

How do you — how can you say that if after they had seen this transaction they just simply going down and get a search warrant, they hadn’t been seen by Vale or anybody else at that time?

Louise Korns:

Well, in the first place they didn’t know that they hadn’t been seen by the Vales and actually probably knew there were people in the house watching everything they did or they might very well have been neighbors watching what they did.

We don’t know about that but these things get around very quickly among people of this type.

Not only that Mrs. Vale and James came back to the house within minutes after the police officers got in to house.

So therefore, but they might’ve very well have gotten back to the house seeing the police officers put Saucier and Donald into the cars.

I mean, this —

Potter Stewart:

What sort of a neighborhood was this in the New Orleans?

Residential or business or commercial, what is it?

Louise Korns:

Yes, Your Honor.

A residential small sort of shotgun house is close to each other.

Thurgood Marshall:

What — there were three officers?

Louise Korns:


Thurgood Marshall:

And there were two entrances to the house; one front door and one back door?

Louise Korns:

There wasn’t backdoor entrance leading into the yard.

This is clear because the record shows that the officer — one of the officers run out the backdoor and looked in the yard and see if there was any disposable evidence.

Thurgood Marshall:

So, once they have found that there was nobody in the house, no person it would only take a two policemen to make sure that nobody disturbed the evidence, would they?

Louise Korns:

That’s right but Mr. Justice —

Thurgood Marshall:

So we take one policeman with the two prisoners?

Louise Korns:

Couldn’t have done that Mr. Justice Marshall.

One policeman couldn’t drive two prisoners and that would be bad security.

Louise Korns:

You have to at least to have two police officers in the car with two prisoners.

One police officer is so to drive and one to watch the prisoners.

Thurgood Marshall:

Well, they could’ve left the prisoners there?

Louise Korns:

There’s no doubt about it they could —

Thurgood Marshall:

Doesn’t the record show that two police officers went inside and one stayed out with the prisoners?

Louise Korns:

No, I don’t believe sir.

I think the record shows that all of them went in.

All the police officers and Donald Vale and Saucier and that then Mrs. Vale and James arrived.

Thurgood Marshall:

Well, could they have gotten one more policeman in New Orleans to watch the backdoor while one guards the front door?

Louise Korns:

There’s no doubt about it.

There’s no doubt about they couldn’t.

Thurgood Marshall:

And the evidence could not have been destroyed.

Louise Korns:

No doubt about it.

The Louisiana did say they could’ve — position as this would have taken a long time and it would have interfered with the liberty of Mrs. Vale and James Vale inordinately?

And supposing in the end they haven’t found any?

Thurgood Marshall:

Did the arrest take place?

Louise Korns:

They only arrested him after they found the narcotic evidence.

Thurgood Marshall:

Well, that’s interfering with it they —


Louise Korns:

No, well they arrested him for possession of narcotics Mr. Justice Marshall after they had searched the house and found the narcotics in his bedroom as his mother said.

But we’re talking about the preliminary situation when the officers had just arrested Donald and Saucier right outside the house engaged in a narcotic transaction and then the whole issue they had to decide on the spur of the moment was whether to go in that house and look for those narcotics.

They didn’t know whether anyone was in the house or not.

That’s the situation we have right there.

They have to go in the house to see if anyone was there.

Now, there’s no doubt it we can see that they could’ve gone in and look around and seen no one was there then they could’ve called other police, placed guards on the house and gone out and got a warrant.

This would’ve take in anywhere from three hours to the next day.

We concede that.

Byron R. White:

Well, you would be making the same argument wouldn’t you if they had arrested him six or eight blocks away on his way to his house?

Say, he was going from work to home or they just intercepted him on the street and they thought there was probable cause that he had narcotics in his house.

Let’s assume they did have probable cause, do you think he had narcotics in his house, you would be making the same argument that you should not have to wait for a warrant in order to search that goes likely places where narcotics might be located?

Louise Korns:

No, Mr. Justice White here of course we’re relying on the settled decisions of this Court that following a valid arrest the police can make a search incident to that arrest at the place of the arrest.

And the only issue here is whether the place was extended a little too far as we said because Donald Vale was arrested at the front door of his house.

Byron R. White:

Well, how do you distinguish Shipley?

Louise Korns:

Shipley, we distinguish very clearly.

In that — in Shipley for instance the only similarity between this case and Shipley is that both arrests took place outside the house but unlike this case in Shipley, the police officers weren’t watching and didn’t see Shipley going in and out of his house committing a crime.

Shipley had committed that crime several days before and they were just at his house to arrest him for this crime they’ve heard about.

Secondly, Shipley didn’t involve narcotics —

Byron R. White:

Are you saying that in Shipley apparently they didn’t have — even have probable cause to search that house, is that your point?

Louise Korns:

Well, right.

The thing is that I see it Shipley then hour of that they could’ve got a search warrant and Shipley as this Court pointed out they stake — they first went into the house and Shipley and they already eluded Shipley’s associates to the fact that they went search because his wife was in there.

They already knew then they went back out and stake to that.

Now during the stakeout they could’ve which went on for several hours, they certainly could’ve gotten a warrant.

It wasn’t the emergency situation which here this emergency situation just developed in front of the officers as they went to serve these two old alias capiases.

They were presented with this emergency situation completely unforeseen, the sale took place in front of there eyes.

Then what they were going to do about trying to get that evidence which they knew was in that house.

It all happened just like that.

Warren E. Burger:

Mr. Korns, let me go back to the hypothetical that Mr. Justice White put to you.

That is if he encountered Vale six blocks away from the house.

In that circumstance, would he have any basis for thinking the house was the source of supply having been seen him come from the house to make the sale?

Louise Korns:

Not at all, not only that but the house wouldn’t be the place of the arrest here it’s true that the arrest took place at the front steps of the house but remember this, Donald Vale had gone into the house when Saucier had first given him let him know he want a narcotics had come out of the house, leaving the door open, looking up and down.

When Vale saw the police officers approached his house and arrest him right there at the car, he turned around and started toward the front door and as a matter of fact if the police officer had been aware of all the decisions which police officers aren’t.

If I’ve been there I would just wait that the minute let Donald walk back into his house and then when a few steps he would’ve been inside the house and you say, alright — alright, although under Chimel I guess you would’ve had to lame walk all the way back to the closest.

But anyway, nevertheless, it was so clearly a question of the arrest taking place at the scene you know of the search talking place at the scene of the crime immediately contemporaneous with the crime.

That we think these are the facts at which governed this case and would clearly distinguish an arrest which took place on the street for instance.

There, the place of the arrest would be the street and there the officers would only look around the feet of the accused for instance.

Now, the State of Louisiana feels that this emergency situation is so similar to the one that existed to Schmerber for instance or in Warden versus Hayden and we can’t see the difference.

Of course in Schmerber it involved a blood sample and in Warden versus Hayden it involved burglary — fruits of the burglary.

But nevertheless, the basic situation is the same.

The police officers are faced with a situation in which they’ve got to act quickly or the evidence they are going to seize is not going to be there anymore.

They’re faced with this situation and narcotic evidence disappears just as rapidly as does alcohol in the blood.

Louise Korns:

Not only that, I’d like to point out to this Court that if police officers can’t make searches for narcotics such as existed in the present case, they can’t really ever seize this evidence because how would they able to get a search warrant for instance although — no, let’s say the police officer is like in the present case knew that Donald Vale was operating from four or five different addresses.

Now, supposing they had gone to — had made out a search warrant about six of them, four or five addresses, one for his car, one for his person.

All simultaneous and taking him to a criminal district court judge all residing probable cause to believe that this particular warrant were discovered would turn out narcotics.

The judges signed them all then he had gone around and executed all these warrants and one of them that had found narcotics.

It seems to me that the accused, all he had to do is go and say, how could you have probable cause for this one warrant when you sign — when you got that five others and you really didn’t know where it was did you and no you didn’t.

And how do you know where the narcotic evidence is in the case like this where this guy — these people are very smart and they jump around and they change where they keep the narcotic hoard on the person and the car in different place.

So, how would the police ever get?

Warren E. Burger:

Is this the case in which the record shows that they have habitually used three or four connecting houses?

Louise Korns:

No, not connecting houses Your Honor.

Donald Vale, this was his mother and brother’s house.

He had an apartment of his own, he sometimes stays in his girlfriend’s apartment or friend’s apartment operated of an automobile but he’s an intelligent man enough to know that if he doesn’t keep moving and keep his narcotic stock quickly shifting around then it’s going to get seized.

Now, are there any questions of Court would like to ask?

Warren E. Burger:

I think none Mrs. Korns.

Louise Korns:

Thank you, Your Honors.

Warren E. Burger:

Thank you.

Mr. Deutsch.

Eberhard P. Deutsch:

Mr. Chief Justice three or four observations in connection perhaps primarily with the discussion yesterday.

I did make inquiry Mr. Justice White is to how long it would take to get a search warrant because I have no idea of my own.

I was told that the ordinary practice of a situation of that sort is for one of the officers to telephone that they’re coming down, give the appropriate information, and get the necessary papers ready while they were on their way back within the day time while courts are opened.

They — it does take only about 30 minutes to prepare the necessary papers and add to that the time going in and coming back out should not be more than one hour for whatever that’s worth.

Warren E. Burger:

I think you’re posing the optimum circumstances —

Eberhard P. Deutsch:

In the day time, yes sir.

Warren E. Burger:

Mr. Deutsch, the optimum on a very favorable basis.

Eberhard P. Deutsch:

There’s no question about that that is the optimum situation.

Warren E. Burger:

That would be perfect operations if you had an assistant district attorney there to assist with the preparation of that application to be sure that it met the standards laid down by this Court which are preferred to (Voice Overlap)?

Eberhard P. Deutsch:

I’m not at all certain Mr. Chief Justice that a search warrant would be issued in such a case on the type of evidence they had.

Now, the statement is made — has been made that there was a narcotics transaction which have taken place.

Actually no one saw that, they saw what they thought was a narcotics transaction.

There was —

Warren E. Burger:

Isn’t that the essence of probable cause, it’s more probable than not that people in these circumstances swallowing something in the presence of the officer were swallowing something incriminating?

Eberhard P. Deutsch:

I’m sure that on that alone, they would never get a conviction at least I assume that from reading the newspapers.

Warren E. Burger:

No, we’re just talking now about probable warrant.

Eberhard P. Deutsch:

About probable cause and I plead I don’t dispute that.

I don’t dispute the probable cause.

I made the statement that he has that I didn’t know never seen a search warrant so I couldn’t very well speak about it.

In the course of checking on that I find that with one exception in the history of this Court at least to modern history no writ of certiorari has ever been issued out to this Court and no one has ever seen one where used to using this terms without really realizing what they are.

I assume the judge to this Court had.

I was asked yesterday too about the question as to why a hearing should be granted in this case and it should not have been handled summarily.

I assume that was because Mr. Justice Black and Mr. Justice White while concurring in the grant of certiorari in the two prior case has decided in June of last year said that they dissented from a summary dismissed — summary reversal of those cases without a hearing.

And that under those circumstances it was thought best to grant a hearing in one case for the trial.

Now, we —

Byron R. White:

The two cases you were referring whether New Jersey case and the California case, I assume?

Eberhard P. Deutsch:

Yes sir, Von Cleef and Shipley, that’s right.

Now, we rely of course on Agnello, James and Shipley in which and the statement finally made in Shipley that no warrant has ever been — had no search has ever been held to be valid when the arrest was made outside the premises in which the search took place.

We submit the case.

Warren E. Burger:

Thank you Mr. Deutsch. Mr. Deutsch, you acted at the request of the Court by appointment of the Court, we thank you for your assistance to us and of course assistance to your client.

Eberhard P. Deutsch:

I’m very grateful for the privilege Mr. Chief Justice.

Warren E. Burger:

Thank you Mrs. Korns.

The case is submitted.