Vale v. Louisiana

PETITIONER:Donald J. Vale
RESPONDENT:Louisiana
LOCATION:Vale Residence

DOCKET NO.: 727
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 399 US 30 (1970)
ARGUED: Mar 04, 1970 / Mar 05, 1970
DECIDED: Jun 22, 1970
GRANTED: Oct 13, 1969

ADVOCATES:
Eberhard P. Deutsch – for the appellant
Louise Korns – for the appellee

Facts of the case

New Orleans police officers had a warrant to arrest Donald J. Vale on narcotics charges. While staking out Vale’s home, the officers saw Vale come out of the house and do what they thought was a drug deal. The officers arrested Vale outside his home and told him they were going to search the house. The officers did not have a search warrant. During the search, the officers found narcotics in a back bedroom. This evidence was admitted at Vale’s trial where he was convicted. The Louisiana Supreme Court affirmed his conviction. The court rejected Vale’s argument that the narcotics evidence was the product of an unreasonable search and seizure.

Question

Was the police officer’s warrantless search of Vale’s home an unreasonable search and seizure in violation of the Fourth Amendment?

Warren E. Burger:

Number 727, Vale against Louisiana.

Eberhard P. Deutsch:

Mr. Chief Justice —

Warren E. Burger:

Mr. Deutsch, you may proceed whenever you’re ready.

I’m sure you could have proceeded in either case.

William O. Douglas:

Would you like to comment on that prior case?

Eberhard P. Deutsch:

Pardon?[Laughter]

It’s a good fortune one rarely has.

Mr. Chief Justice and may it please the Court.

The appellant in this case have been charged in a proceeding prior to the one here at issue where the violation of the state narcotics law.

In the course of that proceeding, his bond was raised on the prior charge and three policemen with capiases for his arrest in connection with the raised bond proceeded to what was believed to be his home and they did what they called stick themselves out and hid themselves near the home to watch it for some reason.

They said they want to be sure he was home before they arrested him, I didn’t quite understand.

In any event, while they were waiting in hiding an automobile drove up in front of the appellant’s home and it was driven by a man known to be a narcotics addict.

The driver sounded his horn, appellant came out of the house, talked to the driver from the other side, the passenger side of the automobile, returned to his home, came out again, again talked to the driver and then the police made their presence known, surrounded the automobile, arrested the driver, he hastily put something into his mouth and presumably swallowed it.

The police assumed that what they called a transaction was taking place and the appellant himself turned and started to walk back into his home, they stopped him and arrested him.

There are some variations in the testimony about how far he was from the door of his home.

And I suppose, at one point I think it said he was at the front steps.

At another, he was at the side of the car anywhere from 15 to 30 feet away.

In any event, he was not inside the house when arrested and I think the best way to put it was that he was on the sidewalk in front of his home.

Potter Stewart:

I think there were some indications the door was opened.

Eberhard P. Deutsch:

The door was presumably opened, yes.

Potter Stewart:

And that he was — had come close enough so that he had opened the door, if that was right?

Eberhard P. Deutsch:

No, I don’t think that’s him.

Potter Stewart:

I think that’s a misunderstanding.

Eberhard P. Deutsch:

Yes, I think he had left it open when he came out.

Potter Stewart:

I see.

Eberhard P. Deutsch:

I’m not positive of that.

In any event, they were all arrested.

Now, the police have no search warrant, they entered the home over the protest to the appellant.

Advised him they were going to search the home for narcotics and advised him of his rights presumably in the usual fashion.

A few minutes later, his mother and brother came home and they were also told that the house was to be searched and protested, at least the mother protested and they proceeded with the search.

Eberhard P. Deutsch:

They also arrested the brother and in the course of the search in a closed locker in a bedroom hidden in clothing which the appellant admitted was his, they found narcotics and then the course of further search and perhaps his — even helping them with the search is not entirely clear they found some narcotics paraphernalia in the bathroom.

Potter Stewart:

The record show how many rooms this house had?

Eberhard P. Deutsch:

I believe it had three rooms perhaps —

Potter Stewart:

Three downstairs room?

Eberhard P. Deutsch:

— and there’s no kitchen and a bathroom.

Potter Stewart:

Three downstairs room?

Eberhard P. Deutsch:

All one — one floor.

Potter Stewart:

All one floor.

And since I’ve already interrupted you, they of course did not have a search warrant?

Eberhard P. Deutsch:

Had none whatever.

Potter Stewart:

They had an arrest warrant, did they or capias?

Eberhard P. Deutsch:

They had the arrest warrants but not for this offense.

They had arrest warrants under a prior charge on which they stick themselves up presumably to find him.

They had no arrest warrant for this particular offense.

Potter Stewart:

But you were — we have consumed I guess in this case that this was a lawful arrest, can we?

Eberhard P. Deutsch:

I think it would have to assume that although it’s very difficult to say what they came up there to make a lawful arrest with arrest warrant.

Potter Stewart:

Right.

Eberhard P. Deutsch:

Instead of doing that, they hid themselves out and watched what they presumed what they called a transaction taking place.

Then, they went into the house and on the search found the narcotics following which they charged him with possession of narcotics.

Warren E. Burger:

Do you begin the complain before they began the search?

Eberhard P. Deutsch:

No sir, well (Voice Overlap) as a matter of fact this Court has confined me to the matter of search and seizure.

So that they charged —

Byron R. White:

But in considering — in considering the matters search and seizure it’s important to know whether you — whether we can assume that proceed on a hypothesis that this was a lawful arrest?

Eberhard P. Deutsch:

I would have to assume that.

Byron R. White:

Because I suppose that a search incident to an unlawful arrest can never be a reasonable search based on theoretical.

Eberhard P. Deutsch:

Well, I so understand the law exactly.

Byron R. White:

Whatever, yet the scope of the search.

Eberhard P. Deutsch:

I would say this was a lawful arrest on the basis of the offense which they believed to have seen taking place and that thereafter they found the evidence on the basis of which they made the charge on which they had arrested him.

Now, that brought us — I suppose as I come to it on the record which is all that I have under all service.

Now, he had counsel appointed for him.

Eberhard P. Deutsch:

He moved to suppress this evidence in a separate sort of proceeding which I understand is typical in this type of case.

He also objected according to the record to the introduction of the evidence on the ground that it was obtained by an unconstitutional search and seizure.

He pleaded the Fourth and Fourteenth Amendment.

The case was appealed to the Supreme Court of the state and they cited the statute, the arrest statute which permits the officers to take from the person arrested all weapons and incriminating articles which he may have about his person.

They cited that statute in justification of the search and held that there was no violation of the cited constitutional provisions.

I think that is a fair statement of the fact for the purposes of this case.

Warren E. Burger:

Do you see a difference in language of that statute as between saying about his person and on his person?

Eberhard P. Deutsch:

I don’t know, sir.

Warren E. Burger:

If it means the same thing?

Eberhard P. Deutsch:

Oh!

I think from practical purposes.

It’s —

Warren E. Burger:

It doesn’t mean about in the sense of lying about?

Eberhard P. Deutsch:

Perhaps, but I don’t think that’s involved in this situation.

In any event, this says in so many words from the person arrested all weapons at which he may have about his person.

Now, as far as I’m concerned that means on his person, I may be stretching it.

I think making a difference on a word of that sort.

In any event, is going too far in statutory transaction.

Warren E. Burger:

And I wondered if you were emphasizing that one?

Eberhard P. Deutsch:

I do not take that position.

Now, —

Thurgood Marshall:

Mr. Deutsch, did he cover the point as to whose house this was?

Eberhard P. Deutsch:

I don’t think that’s really important.

He admitted the clothing was his.

His mother denied it was his home.

Thurgood Marshall:

See, that’s what I thought.

Eberhard P. Deutsch:

And they had arrested him at other premises on Pereira case but I can’t quite see the relevance of that issue which did arise in the trial court.

And the trial judge only said that he knew the cases of this Court where the other way but he didn’t propose to follow (Voice Overlap) the law.–

Thurgood Marshall:

I was thinking about the relevance.

I just want to know that it’s just unclear.

Eberhard P. Deutsch:

I don’t think it’s really relevant.

He admitted the clothing was his.

He admitted the narcotics were taken from his clothing.

He never disputed that and while his mother said he doesn’t live here, it’s his brother who lives here and they were both arrested, both tried.

I don’t think that that’s really at issue at this point.

Now, some 200 years ago or more, William Pitt, the Elder in the House of Commons or the Earl of Chatham said, “The poorest man may in his cottage bid defiance to all the forces of the Crown.

It may be frail roof, may leak, the wind may blow through it, storm and the rain may enter, but the King of England may not enter all of his forces they are not cross the threshold.”

That’s the — I think the fundamental, the beginning of the principle which we not have embodied in the Fourth Amendment.

And about that same era, the Lord Halifax was what was called in England one of the secretaries of state issued a general warrant for the arrest of the publishers of the — seditious libel stated to have appeared in the North Briton.

On moving about the so-called messengers, I suppose equivalent to constables learned that it was John Wilkes who was the publisher of the libel and under that same general warrant namely him or any one else Wilkes was arrested, his house was ransacked, his papers were seized.

They called the blacksmiths that broke the locks and so on and that he sued the messengers and others and Lord Halifax for libel or a rather for the unlawful issuance of unlawful writ and the seizure, I should say.

He recovered 1000 pounds against Lord Halifax, a lesser amounts against the others in a famous opinion written at that time by Lord Chief Justice Pratt and followed very shortly within the same few years, same decade by the famous case of John Entick who had been arrested and his papers all seized under a somewhat similar warrant except that it main him.

It was seditious libel in the British Freeholder and other publication.

And in that case, Lord Camden held that if this practice which had originated in the Star Chamber should be sanctioned, “the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection whenever the secretary of state shall see fit to charge or even suspect a person.

And this power so assumed there’s an execution on all of party’s papers, his house, his rifle; his most valuable papers are taken out and so on.

And then may in his constitutional history of England that antique cases are uncovering perhaps 100 pages of fine print.

It’s a long-winded thing but may in this constitutional history of England sums it up that with the unanimous concurrence of Lord Mansfield and the other judges of the court, this eminent magistrate now finally condemned this dangerous and unconstitutional practice.

Now very interestingly, just before those two famous English cases arose, a situation arose in the Massachusetts Bay Colony.

The British ministry set orders to issue general warrants which they were called writs of assistance to search for merchandise on which the duties imposed by parliament and not been paid.

There were no names, there were no places, they were simply suppose to go out and it gave them the right presumably to go into any warehouse shop or other place to search for these payments.

James Otis was the Attorney General of the Colony of Massachusetts under crown appointment at that time.

He refused to support the writs, resigned his office, took employment on the other side without fee and fought the issuance of these writs from the Superior Court of Massachusetts, and the case was reported actually by John Adams whose notes of the case are published.

He said in the first instance that the court expressed great doubts of the legality of such a writ and of the authority of the court to grant it.

And Otis said in his argument, “the writ prayed for in this petition, being general, is illegal.

It is a power that places the liberty of every man in the hands of every petty officer.

”Not more than one instance he went on and he talked about the case in the Star Chamber.

Now, these writs were never issued but at the conclusion of his notes, John Adams said, American independence was then and there born.”

At the end of his argument, I think this is very significant language, Otis said that special writs only may be granted on oath and probable suspicion.

The acts of William at end are confined to this sense that an officer should show probable ground, should take his oath of it, should do this before a magistrate and that such magistrate if he think proper should issue a special warrant to search the place.

That language is almost copied for about 25 years later into the Fourth Amendment, it’s perfectly astounding.

Eberhard P. Deutsch:

Now closely, that language that he used in the argument as reported by John Adams tracks or vice versa the language of the Fourth Amendment to the Constitution of the United States.Now, if this Court —

Warren E. Burger:

May I ask you Mr. Mr. Deutsch that relates that to the present situation.

I take it from what you have said that probably would agree that the information which the police end up at the time they went in who made the search and have presented that to the magistrate on oath they could’ve got a warrant?

Eberhard P. Deutsch:

Yes, sir.

The state makes the contention that this was one of those hot pursuit cases that it would have to be done immediately and if they have tried to go for a warrant while the evidence would’ve disappeared as its usual and that sort of thing they say, they flashed it down the toilet and all that sort of thing.

And the suspect —

Warren E. Burger:

I suppose you agree with those practicalities too?

Eberhard P. Deutsch:

Pardon?

Warren E. Burger:

I suppose you’d agree with those practicalities?

Eberhard P. Deutsch:

Well, not in this case but I do it in principle of courts of that type of things.

Warren E. Burger:

But you do agree that they could have got a warrant?

Eberhard P. Deutsch:

Oh!

I don’t think there’s any question about that.

I think that there were three officers; two of them could have stayed there while the other one get a warrant.

Warren E. Burger:

Now, if they stayed there, could — they don’t replace this man under arrest?

Eberhard P. Deutsch:

Yes, sir.

Warren E. Burger:

It placed his brother under arrest a few moments later?

Eberhard P. Deutsch:

And the driver of the car.

Warren E. Burger:

Could they then have —

Eberhard P. Deutsch:

The only one there was the mother.

They’d have no trouble watching the place.

Warren E. Burger:

They could make them sit on a chair under arrest and wait until the warrant got back?

Eberhard P. Deutsch:

I think they could have.

Warren E. Burger:

Without invading their privacy?

Eberhard P. Deutsch:

I think so, either without unlawfully invading their privacy under all the circumstances.

I don’t think that would’ve been unlawful invasion to wait there and watch the —

Warren E. Burger:

Well, do you think they were lawfully in the house then?

Eberhard P. Deutsch:

I can’t say that, no sir.

No sir, they would — they might have to wait outside but if he had done it on the basis of a warrant to be obtained, he might have gone in to prevent that, yes sir.

I think lawfully.

Warren E. Burger:

Well, then he could not on my — the hypothesis I gave you, you would not agree with, he could’ve made the two brothers sit down in chairs and wait the return of the warrant, they’d have to take him out on the porch or outside?

Eberhard P. Deutsch:

I think what he could’ve done before they entered with the three officers.

Could have sent — one of them could have gone back for a warrant and the other two could then said, now while we wait for the warrant, we’ll come in here we will not conduct to search, we’ll simply sit here and make sure that no evidence that might be here in this regard would disappear.

Now, there is another principle involved, there adds a question as to whether you can search just generally in the hope of finding evidence even under a search warrant.

I don’t have that situation, I’m not prepared to discuss it but I know there is the question that even with the search warrant they couldn’t necessarily have gone into the place and search and said, we hope we are going to find some evidence on which we can convict you on this arrest that we made on a suspicion that you have something hidden in this house which are not allowed to have.

But that’s another question.

Warren E. Burger:

What — I thought you conceded they could get a warrant, what could they get a warrant for?

Eberhard P. Deutsch:

Well, that’s — I mean it’s another question, it’s a hypothetical question.

They go down and say, we saw what we believe to be a transaction.

They would say that the judge presumably under oath in narcotics transaction.

We believe there are narcotics hidden in this house.

We asked for a warrant on basis of which to search for these narcotics under the circumstances.

Now, that would bring up a set of facts that does not exist in here that I can’t possibly — I can’t go into all the tangential aspects which may arise under that type of hypothesis.

Warren E. Burger:

Part of your case is that they had an alternative namely to get a warrant and I’m exploring your alternative to which (Voice Overlap).

Eberhard P. Deutsch:

Well, I understand that of course is in the picture but the truth of the matter is that it didn’t happen and whether they could have done it or not, it is my position that they have no right to do what they did.

Potter Stewart:

What if there is someone else in the house then the police — assume the police might have gotten the warrant.

Assume they had probable cause to get a warrant you could leave the police in the house and do what?

Eberhard P. Deutsch:

Simply sit down and wait for the warrant to come by, to make sure —

Potter Stewart:

Well, what if there’s another person in the house and the other person is wandering, can you follow that person around all over the house to make sure he doesn’t destroy evidence?

Eberhard P. Deutsch:

Of course, I can’t quite conceive of that.

I think the police said (Voice Overlap).

Potter Stewart:

Well, I would suppose that would be the most normal thing in the world if a confederate or member of the family or something was in the house and the police is waiting there to keep evidence from being destroyed.

I suppose if they are going to achieve that, they would have to follow the person around all over the house.

Eberhard P. Deutsch:

Either that or ask the person to stay there or person said you go to the devil, I won’t do it.

I don’t know what would happen on that case.

Potter Stewart:

Well, where is your privacy going then if you leave the policeman there and he follows you around all over?(Voice Overlap)

Byron R. White:

How long does it take to get a warrant in your state?

Eberhard P. Deutsch:

I have no idea but I should (Voice Overlap).

Potter Stewart:

Five or six hours or two hours or two days or what?

Eberhard P. Deutsch:

I would imagine maybe the driving from this area would take 15 to 20 minutes to go to a court house and 15-20 minutes, let’s say within an hour you can have it, but not certain.

Potter Stewart:

Do you mean if you get it typed — the warrant typed up and affidavit drafted and —

Eberhard P. Deutsch:

You’ll have a tremendous advantage over me, sir.

I’ve never tried a criminal case in my life and I don’t know.

I just imagine that it is a practical matter that it take an hour or so.

Now, I could be very well be wrong (Voice Overlap).

Potter Stewart:

What time of the day or night?

Eberhard P. Deutsch:

I’ve never seen a search warrant.

Potter Stewart:

Excuse me.

Eberhard P. Deutsch:

What?

Potter Stewart:

I didn’t mean to interrupt you.

Eberhard P. Deutsch:

No. No.

Potter Stewart:

What time of the day or night would this occur?

Eberhard P. Deutsch:

It was in broad day light around noon.

Potter Stewart:

On a week day?

Eberhard P. Deutsch:

Oh!

Yes.

As this case has said on the course of its opinion especially the recent ones that the law on this subject has moved from side to side any number of times, Mr. Justice White, I think in the last opinion said five times and there isn’t any question about it at in my reading of all of this law.

I think there is a threat of an effort to live up to the constitutional history to which I have referred.

I think it is well summed up in the dissenting opinion of Mr. Justice Murphy in the Harris case which has since been overruled and also in his majority opinion in the Trubiano (ph) case involving the steals.

Of course I am not here to argue the question of retroactivity of the Chimel case decided some later 10 months ago.

I don’t think it’s necessary to do so.

I know that Mr. Justice Harlan’s statement and one of the other cases that it should be applied the case is still subject to direct review by this Court but I have not approached the matter from that point of view.

I might refer for a moment to the case of James versus Louisiana in which a man was arrested two blocks from his house, and this Court held in a unanimous decision per curiam that his home could not be searched under those circumstances without a warrant.

I might mention —

Byron R. White:

Do you think this case just turns out to James, its good?

Eberhard P. Deutsch:

No, I’d go further Shipley which is the one you decided on the same day as the Chimel case.

Byron R. White:

Do you think they —

Eberhard P. Deutsch:

I just can’t see any difference and the only reason I’ve gone – I’m putting my case on the basis on which I have especially on this oral argument is that I can’t understand why you would ask for a hearing.

Byron R. White:

And why we didn’t do this one summarily too?

Eberhard P. Deutsch:

Well, I go further than that, exactly the same as the Chimel case.

Eberhard P. Deutsch:

Its open it involves a similar situation except it goes back one step because he wasn’t in the home on arrest.

Byron R. White:

Well, that — I mean then you’ll have to assume that Chimel was in retroactive but the other case decided with Chimel was one Shipley?

Eberhard P. Deutsch:

Shipley and Van Cleef.

But Shipley is very closely on point because he was arrested that he was getting out of his automobile near his home.

Byron R. White:

In Shipley arrest, he simply went outside and that makes it in the Chimel action?

Eberhard P. Deutsch:

No, it was decided on law prior to the Chimel.

Byron R. White:

The Chimel law?

Eberhard P. Deutsch:

Chimel or Chimel.

Byron R. White:

So, it’s in the line of James?

Eberhard P. Deutsch:

Exactly and I just want to mention if I may as a little interesting sidelight that the James case I have talked about James Otis who was the father of the Fourth Amendment.

This man’s name was Otis, James.

Now, in Shipley, very frankly when this Court said not referring to the Chimel case at all, the Constitution has never been construed and that statement I confine — I cannot find it any exception.

I can’t find that that’s wrong.

By this Court to claim to allow the police in the absence of an emergency to arrest the person outside his home and then take him inside for the purpose of conducting a warrantless search on the contrary it has always been assumed that once house cannot lawfully be search without a search warrant except as an incident to a lawful arrest therein.

Now, that’s a per curiam decision.

The statement as I said, the position of the state in this Court at any rate is that this was an effect a hot pursuit, and that this wasn’t really a general search that it last to only two or three minutes.

Now, I dispute that as a matter of fact on the record and I’ll take only a moment to mention that.

The brief of the state says that approximately a minute or two no more than three minutes — oh, I’m sorry that’s the transcript.

Within minutes says the brief after entering the house, the officers found the heroin and Dilaudid and so on.

Now, what and the reference there is to page 12 of the transcript, the appendix which says, “that approximately a minute or two no more than three minutes Officer Laumann had walked into the back bedroom and while I was standing in the front room, James Vale and his mother came into the front room of the house.

At this time, I identified myself to them and told them Donald Vale was under arrest and we were going to conduct a search of the house.”

That’s where the two or three minutes came in.

He told them they were going to search.

We simply submit and may it please the Court, that appellant was convicted on the basis of evidence obtained in violation of the Fourth and Fourteenth Amendment.

That conviction was affirmed actually here be reversed.

Warren E. Burger:

Thank you Mr. Deutsch.

Byron R. White:

Mr. Deutsch, may I ask you a moment?

Eberhard P. Deutsch:

Certainly.

Byron R. White:

I know that the Court suppose upon the jurisdiction in this case rather than noting —

Eberhard P. Deutsch:

Yes, sir.

Byron R. White:

If your fictional question here is there is only a question of whether to make an appeal or search?

Eberhard P. Deutsch:

Well, that could be the only question actually.

The state filed a motion to dismiss for one of jurisdiction and the Court postponed that to the merit.

The state has not raised the question of jurisdiction in its brief to this Court.

Byron R. White:

Well, what was the question raised in motion?

Eberhard P. Deutsch:

You see the State Supreme Court cited the statute permitting the search on making arrest and then held not very specifically or clearly that there was nothing violated of the Constitution in the arrest made under that — and the search made under that statute which I construe to mean that they held that the statute as so applied does not violate the Fourth and Fourteenth Amendment.

If so, this is a good appeal if not it belongs here on cert in any event.

That would be my construction.

They held the statute not to be violated.

The statute is so applied not to be violated with the Fourth and Fourteenth Amendment.

Warren E. Burger:

Thank you.

Mrs. Korns.

Louise Korns:

Mr. Chief Justice and may it please the Court.

The State of Louisiana certainly agrees with everything that Mr. Deutsch has said about the inviolability of homes and the constitutional prohibition against the search of a house without a warrant.

However, as the State of Louisiana sees this case, its issue is much narrow and sort of confined the facts of this case.

This Court has held continually and even as later Chimel that —

Byron R. White:

Do you have trouble to that?

It might interest you that counsel for that effect is here a while ago and he told us that this can have Chimel?

Louise Korns:

Chimel? [Laughter Attempt]

I think even as later as laid as young as decision in Chimel, it was taken to be settled jurisprudence of this Court that following a valid arrest, an incidental search can be made.

Now, do I understand, has the State of Louisiana certainly argues that a valid arrest without warrant was made in this case or at the right at the front door of the house — front steps of the house.

We concede that it was not in the house, it was — Vale was returning to his house.

Now, if a valid arrest was made, an incidental search contemporaneous with this arrest under the jurisprudence of this Court on incidental search was permissible.

And as the State of Louisiana sees that the only issue before this Court is whether the scope of that incidental search was also permissible.

In other words, —

Thurgood Marshall:

What were you searching for?

Louise Korns:

The police officers testified Mr. Justice Marshall that they were sure that there were narcotics in that house because as they watched the house to be sure Donald Vale was there before going forward with these prior arrest warrants they had that what they saw convinced them that Donald Vale had gone back into that house to get the narcotics which he brought out and sold to Saucier —

Thurgood Marshall:

Well, they weren’t looking for weapons, were they?

Louise Korns:

No sir, they were looking for narcotics there’s no doubt about it.

Thurgood Marshall:

They weren’t looking for anything that might injure them, were they?

Louise Korns:

No, sir.

They were looking, the State of Louisiana concedes because it’s from the record, the State of Louisiana has to concede.

The police officers testified that they were sure there were narcotics in that house from which James Vale was — Donald Vale had going in.

They were sure that was where his supply was that he would come out of that house and sell to the people who would come up to the house like Saucier in instance case.

So they — when they saw him go back in the house, come back in out without within minutes, looked up and down the street as he went down the steps and put his head in the car, and what they were convinced was a narcotic sale.

And then when they approached the house, an Saucier swallowed the narcotics and they frisked down Saucier and Donald Vale and found nothing on them, they testified that they were convinced that the source of those narcotics were in that house.

So, there is no doubt about the issue in this case as the State of Louisiana sees it is a very narrow one was the scope of their search incident to Donald Vale’s legal arrest constitutionally permissible in scope.

That is there’s no doubt about it that under the jurisprudence of this Court, they had the right following this valid arrest without warrant and from the house to frisked down Saucier and Vale.

No doubt about that under the settled decisions of this Court.

Now, the State of Louisiana and under the Chimel decision, the incidental arrest has been confined to the area within which the accused could reach.

Well, there’s no doubt about it that the search in the instant case went beyond the area into which Donald Vale could’ve reach because it was inside the house.

Now, though it’s Louisiana’s position that this was an emergency situation and that it was impossible to get a search warrant — impossible to get a search warrant in advance because they didn’t know that they were going to be confronted with this emergency sale which took place before their eyes.

They thought they were just going there to arrest this man on prior narcotics charges.

So, they couldn’t have brought along a search warrant, there’s no doubt about that.

Is it time for the Court to recess, Your Honors?

Warren E. Burger:

Not quite.

Not quite, you got two more minutes.

Louise Korns:

Well, they couldn’t have gotten a search warrant in advance on going into this house.

Potter Stewart:

How long that they have been stick out there?

Louise Korns:

Apparently, about 15 minutes Mr. Justice Stewart.

The reason they were watching this house was that Donald Vale operated from three or four addresses.

Potter Stewart:

Yes.

Louise Korns:

They had arrested him at other addresses previously and they just testified that they — before approaching the house and letting James Vale, his brother and Mrs. Vale his mother know that they were looking for Donald with an arrest warrant.

They didn’t want him to be elated to this fact.

And therefore, they wanted to be — they have gotten a tip that he was selling from this address at that day or that he was at this address that day, let’s say.

Potter Stewart:

Well, now which —

Louise Korns:

That they could pick him up at this address that day.

Potter Stewart:

Does the record show that they have information that come to him indicated that he was selling on that address on that day?

Louise Korns:

No.

No, that’s a mistake.

Louise Korns:

They just said they have been told what he was at this address and they testified that they took up their position to watch because they want to be sure he was there before they — they wanted to see him when they approached in to serve the arrest warrants because they didn’t want him to doth again and because this was an alias capias that issued for him when he had failed to appeal.

So, they watched actually I was completely wrong when I said, they thought he was selling and they did.

They watched to be able to serve the arrest warrant.

I see that my —

Warren E. Burger:

I think we’ll suspend until morning.

Sorry to hold you over until tomorrow Mr. Deutsch and Mrs. Korns.

Louise Korns:

Thank you, Your Honor.