Wilson v. Schnettler

PETITIONER:Wilson
RESPONDENT:Schnettler
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 182
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 365 US 381 (1961)
ARGUED: Dec 15, 1960
DECIDED: Feb 27, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – December 15, 1960 in Wilson v. Schnettler

Earl Warren:

Number 182, Bernard Wilson, Petitioner, versus Donald F. Schnettler et al.

Gentlemen, we would not finish — we would not take this case up ordinarily but because we wouldn’t be finishing it by — for adjournment time but Mr. Doherty because you do come from a long distance we are going to — we’re going to continue to and finish your case today.

James J. Doherty:

Thank you very much, Your Honor.

I’ll try to make this short as possible in the presentation.

May it please Your Honors.

This case involves the supervisory power of federal courts over federal law enforcement officers.

The respondents, federal narcotics agents, arrested the petitioner on April 14, 1959 at about 7:30 in the morning and they searched him without a warrant and they recovered two packages of narcotics from his purse.

They did not take him before the United States Commissioner but they took him and lodged him in the Cook County Jail, located at Chicago, Illinois.

Thereafter, in the month of July he was indicted by the grand jury of Cook County and charged with the crime of unlawful possession of narcotic drugs.

On July 31st, he was arraigned at which time our office was appointed to defend him because he was in fact an indigent prisoner.

He entered the plea of not guilty and moved to suppress the evidence in the state court and the motion was denied.

Whereupon, thereafter, we —

Potter Stewart:

Do we have here any record of those state court proceedings?

James J. Doherty:

We have not — not as a part of this record, Your Honor, however, we have a copy, a transcript of the copy and the Solicitor General has a transcript, I know because the Court reporter either lost her notes or something but she copied mine to give it to them so we’ll stipulate to the conduit of the record if they want to after this.

Earl Warren:

There’s no objection?

We have (Voice Overlap) —

Daniel M. Friedman:

No, Mr. Chief Justice.

Earl Warren:

Thank you Mr. Friedman, you may get it to the Court with the proper time.

Daniel M. Friedman:

Surely, yes, Your Honor.

James J. Doherty:

Now the — we went over to the Federal District Court and we made a petition for declaratory judgment.

We asked the District Court to hold the hearing and to ascertain in that hearing if these federal agents had obeyed the standards imposed upon them by the federal rules of criminal procedure.

Potter Stewart:

Can you tell me this much about the state court proceedings, was the motion to suppress the evidence denied because it was not an unlawful procedure or because this had been done purely by federal officers or for what reason?

James J. Doherty:

The — the state court denied the motion to suppress and they said that the authority for doing so was the case of Draper versus United States, ruled on the merits.

During that time, we tried to inquire into why that he was not taken before the United States Commissioner.

John M. Harlan II:

(Inaudible)

James J. Doherty:

It was an arrest case.

John M. Harlan II:

(Inaudible)

James J. Doherty:

The facts precisely as are in the transcript of record are that they had a building under surveillance where they had information that narcotics were being sold.

And they had information that this man had in the past bought narcotics on two or three occasions and he did it between 7:00 and 8:00 in the morning and that was the information they had.

Further brought out if I may speak about what is in this transcript now with propriety, they testified further that they did not know that a crime was in fact committed in that building.

James J. Doherty:

They had received no signal from anybody that a crime had in fact been committed in that building that morning.

And they could not testify under oath whether he had the narcotics on him before he went in or not.

Now, we feel Your Honors that the sole issue here is, are we entitled to go before a District Court and are we entitled to a hearing, not the merits of it, we never have been presumptions enough to say that we know we’re right, we think we’re right and we think that sincerely, we think that we are right that this case will be thrown out in a Federal District Court on a hearing by the district judge.

Now, the — the issue here is, are we entitled to that hearing?

Your Honors granted certiorari on the case as it came from the Court of Appeals of the Seventh Circuit.

Earl Warren:

He is not yet been tried there (Voice Overlap) —

James J. Doherty:

No, he hasn’t, Your Honor.

At this moment he is presumed to be innocent to this charge —

Earl Warren:

Yes.

James J. Doherty:

— and his awaiting trial.

Earl Warren:

Yes.

James J. Doherty:

Now, as I say the case was dismissed in the District Court and it went up to the Court of Appeals in the form of conference and the Court of Appeals of the Seventh Circuit affirmed the dismissal and I think in examination of the decision will reveal that they assigned two reasons for affirming this case and you’ll find this at the bottom of record, page 15.

They said first, “This case must be distinguished from Rea versus United States.”

Which Your Honors set forth in 350 U.S.

They said here, “They were not acting under color of Federal Judicial Authority.”

The federal narcotic agents and therefore, the supervisory power cannot intrude to restrain their testimony in a state trial.

And we say that that is an invitation to these federal agents not to go near to the United States Commissioner and not to seek the protection of a warrant.

It tells them in our humble opinion as clear as words can be that if you go and you’ll get a warrant we can question you, we can ask about the acts surrounding the arrest, we can question the warrant, and then we can suppress this evidence and if you want to insulate yourself against this then just stay away from the United States Commissioner.

Don’t go near him, because if you don’t go near them then we can’t touch you, we can’t inquire at all.

That’s what it tells.

Therefore, we say that’s an erroneous reason.

The other reason is they say that the admission of these narcotics has not been sought in the federal court.

Now, Your Honors have told us in — in the Rea case, that it’s the duty of the federal agent to obey the rules.

John M. Harlan II:

What rules do you think the Court is speaking about in Rea?

James J. Doherty:

I think the Court was speaking about all of the rules.

The — the federal rules or criminal procedure Your Honor and especially in this case the rules governing search and seizure and Rule 5 (a).

Now, this allows the federal agents to just stop and analyze and talk over what they have done by way of making an arrest.

And if they’re satisfied in their own minds that they have obeyed the rules then they proceed to prosecute in the District Court but if they haven’t obeyed the rules then they go into the state court where you can’t inquire under the transgressions that they have committed.

And incidentally, you’ll find in this transcript that we tried to inquire into why.

Why wasn’t this man brought before United States Commissioner and we were stopped?

James J. Doherty:

We weren’t allowed to ask that question.

Now, those are the two reasons that I can find in this —

Earl Warren:

What did the judge — what reason did the judge give for that, do you recall?

James J. Doherty:

No, I don’t Your Honor.

(Voice Overlap) I think it’s on page 16.

Earl Warren:

Well, we will have the transcript, we will have them.

James J. Doherty:

Alright.

Earl Warren:

Don’t — don’t take your time.

James J. Doherty:

Don’t take the time, alright.

Earl Warren:

Yes.

James J. Doherty:

But he just said “I’ll see what difference that makes?”

I think those were his words and he wouldn’t allow it to be inquired into — in the state court.

Now, as on a side, the court said, “If this power existed, the supervisory power, there are policy considerations against it.”

And they talked about Title 21 U.S.C. 198 (a) which adjures the Secretary of the Treasury to cooperate with the several states.

Now, I would like to set that aside just for a second and talk about it about two or three minutes from now.

He said also that in effect, “If you were to be given this relief that you seek now, in effect it would be granting you immediate federal review of an interlocutory state order.”

And I think candor requires us to admit that that is true, that would be the effect but we submit that we are not here dealing in effects.

We submit that we are dealing here in pervading principles in underlying philosophy.

We’re talking here — we’re trying to — we’re seeking to invoke the jurisdiction of the Court predicated upon the supervisory power which as late as June 1960.

Mr. Justice Frankfurter called a peculiarly comprehensive power and designed to discipline federal officers so that we asked, “Is it designed to discipline federal officers and when they — when they come under the federal court or can they avoid it, can they actually avoid it by not going near the federal court and going into a state court instead?”

Now, the — the Government doesn’t discuss the two reasons that the Court of Appeals talked about not going into federal court, enacting under federal — color of federal authority.

They say that we are bound by the state order on what appears to me to be a principle of res judicata.

And yet, I would like to — I would like to recall that in the — in the Rea case, the Court said that the command of the federal rules is not affected by anything that takes place in a state court.

That’s what Mr. Justice Douglas said and as late as the Elkins case, Mr. Justice Stewart said that when you’re asking — when you were trying to find out that there was an illegal search and seizure by state officers that that is an independent inquiry, it’s a question of federal law and so that the District Court has to hold a hearing and it has to decide.

It says, neither large by one state court may have countless nor diminished by what another may have colorably suppress.

Now, if that’s true about state officers whom — over whom you have no control for all intents and purposes except when they come in to a federal court.

If that’s true about them, how much more is it true about federal officers over whom this Court has traditionally exercises this discipline, this federal supervisory power?

And they say also that we haven’t alleged sufficient to show misconduct predicated upon the Draper case and of course we stipulated this thing into evidence now.

So, I think that covers it.

It’s — it was a question of trying to boil down the 39-page document into a couple of paragraphs to get before the Court but it’s immaterial because what we want is the hearing.

James J. Doherty:

That’s all that we ask.

We — we believe that we are being conscientious when we say — when we discovered to the state court what happened, we believe we are being conscientious when we honestly believe that we’ll prevail this in — in the District Court and that the District Court will throw it out but we can’t be presumptuous enough to say that we know.

Now, in Rea, there’s the difference.

In the Rea case, the man who went into the District Court and I remind you at that time there was nothing pending in the District Court when he went back and he saw his injunction he knew that the man he was going before had already said, “This is wrong.

He violated the federal rules.You got to throw it out.”

Now, this is in the side, but I wonder if this Section 198 (a) of Title 21 really means and it’s on page 2 of the Government’s brief.

The first one, now, does that mean that they can violate Rule 5 (a)?

Is Rule 5 (a) an invitation to the federal agents which says, “No, no, please take this fellow before United States Commissioner if you feel like it.”

Or is it a mandate that issues from the Court, from this Court which actually formulated the rules so that perhaps, by virtue of Rule 5 (a) you can’t very well say that this was meant to supplant it and nobody mentions the fact and we said it out in a separate paragraph in our statement of facts that this man wasn’t taken before the United States Commissioner.

Now, that won’t appear in the record because they stopped us when we went to inquire about it here.So propriety dictates that I not talk about that off the record.

Now, we say this that the Rea case certainly doesn’t control this case.

The Rea case — if it’s limited to the proposition for which it stands means just what it says we are going and you get a search warrant and the judge already rules that it’s a violation and then they try to go that they can be enjoined.

We do say this that we should prevail here under the rationale of the Rea case.Under this peculiarly comprehensive supervisory power, we should be entitled to a hearing.

Earl Warren:

Thank you Mr. Doherty.

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

I would like to argue basically two propositions.

First, which I will come to second but we don’t think that the Rea case should be extended to this kind of a situation but we don’t think the Court has to reach that broad proposition because we think that the District Court was fully warranted on the basis of what is shown by this record in refusing to re-adjudicate as petitioner’s counsel has conceded the question of the validity of the search and seizure that petitioner had previously sought a ruling from — in the state court.

And the state court had argued, objected his contention.

This case on its face is almost the converse of the Rea case.

And the Rea case what happened was, the federal court initially had suppressed the evidence and then after the federal court had suppressed the evidence, the federal narcotics agent went over in to the state court and filed a state complaint and instituted a state criminal proceeding based on the same state of facts.

Now, on this case, there’s been no proceeding at all in the federal court.

This man was arrested by the federal narcotics agent and it’s been suggested here that there was something improper because they arrested him without a warrant.

Well, the statute specifically authorizes federal narcotics agents to arrest without a warrant when they have probable cause to believe that the man arrested is committing a crime.

William O. Douglas:

Well, that’s what they want a hearing on it as I gather.

Daniel M. Friedman:

They wanted a hearing on —

William O. Douglas:

Whether what you say is true.

Daniel M. Friedman:

That’s correct, Mr. Justice but that is the issue which they have previously litigated in the state court.

William O. Douglas:

Has there been a hearing on — in the state court on the — whether the Rule 41 (e) has been complied with?

Daniel M. Friedman:

There has been a hearing Mr. Justice —

William O. Douglas:

Those rules certainly are — aren’t finding on (Voice Overlap) —

Daniel M. Friedman:

No, there has not been a hearing in terms of whether Rule 41 (e) has been complied.

There has, however, been a hearing before the state court on whether there was probable cause for the arrest of this petitioner.

Now, I want to emphasize if the State of Illinois is a state which not only follows the so-called exclusionary rule that excludes evidence, obtain as a result of an unlawful search and seizure.

But furthermore, the Illinois Supreme Court has stated that in applying the provisions of the Illinois’ constitutional prohibition on unreasonable searches and seizures, substantially the same standard that this Court has enunciated under the Fourth Amendment will be applied in applying that state standard.

Potter Stewart:

Have they also said Mr. Friedman that they will apply their rule on a search and seizure when the alleged unlawful seizure was made exclusively by federal officers?

Daniel M. Friedman:

They have not decided that question.

Potter Stewart:

Some states have decided that.

Daniel M. Friedman:

They have not — let me say this as far as I can tell.

There’s one case, only one case that discusses this issue.

This is the people against Tully in Illinois.

In that case, the Court refused to suppress evidence that had been seized by an officer of another state.

But there is dictum in the case which seemingly suggests that it would suppress it if it was the result of a seizure either by officers of Illinois or by federal officers.

Potter Stewart:

Did the — did the trial court here on the motion to suppress assumed that the rule in Illinois was that the evidence if unlawfully seized would be suppressed even though the seizure were entirely by federal officers?

Daniel M. Friedman:

I think I have to say clearly so Mr. Justice if I may without —

Potter Stewart:

We’ll read that on the time.

Daniel M. Friedman:

— yes, but they may —

Potter Stewart:

But that is your understanding?

Daniel M. Friedman:

That’s right.

The trial courts found that there was probable cause for believing that this man had committed a violation.

William J. Brennan, Jr.:

(Inaudible)

Daniel M. Friedman:

That is correct Mr. Justice.

Potter Stewart:

Decision was made on the merits of the seizure.

Daniel M. Friedman:

On the merits of the seizure and the Court stated he believe this case was controlled by the Draper decision of this Court.

Potter Stewart:

Presumably they held it was a lawful arrest, therefore, lawful search and therefore —

Daniel M. Friedman:

That is correct.

Felix Frankfurter:

Is there anything in the decision of the Supreme Court of Illinois to indicate that having adopted wholeheartedly, as I believe they have, the so-called which rule that they were to make a distinction regarding the authority that does recieve him, the source of the authority but they would make a distinction that they would give greater leeway to federal officials in their courts and they would for the state —

Daniel M. Friedman:

No.

There is nothing so to indicate.

The — the decision of the — the action in this case in the state court, it was treated without regard to who made the seizure, it was treated in terms of was there probable cause for the arrest of this man.

Felix Frankfurter:

What I was meant to say as far as I remembered, the Illinois Supreme Court decision aren’t negatively on this subject matter.

Daniel M. Friedman:

No, they are very frequent and they have a number of cases I might mention in which the Illinois Supreme Court has reversed criminal convictions because the arrest without a warrant was not based on probable cause.

So that even assuming for the sake of argument, even let us assume that the action of the trial court of Illinois in this case was an error that it should’ve been suppressed, there will be full opportunity if petitioner should be convicted for the Illinois Supreme Court to correct that on its appeal, on any appeal that it takes in view of the consistent holdings by the Illinois Supreme Court.

That evidence obtained as a result of an unreasonable search and seizure will not be allowed to support a conviction, it must be assumed that if in fact there wasn’t any reasonable basis for this search and seizure.

The Illinois Supreme Court will reverse any condition that maybe had.

William O. Douglas:

These findings are — are rather short from the brief that the state court made.

Daniel M. Friedman:

I’m sorry I didn’t hear your question.

William O. Douglas:

These findings that the state court made are rather short from the brief.

Daniel M. Friedman:

Yes, they’re not really —

William O. Douglas:

They’re on Page 8 and you say that they applied the federal standards but it’s very difficult — needs — to see what standard they apply?

There’s nothing to indicate that this man was suspected of anything, it just happened to come out of the building that was being watched.

Daniel M. Friedman:

Are you — I’m sorry Mr. Justice, you’re referring to Page 8 of the record?

William O. Douglas:

Yes.

Daniel M. Friedman:

Yes.

This — the page 8 of the record is the petitioner’s statement as to what the evidence showed before the Illinois trial court and petitioners do not petition that it does not contend that no states that this is all the evidence.

William O. Douglas:

Where is the evidence and you — I just go — I’m referring to citations in your brief —

Daniel M. Friedman:

Yes.

William O. Douglas:

— and it takes me to — to this.

Daniel M. Friedman:

Well, Mr. Justice, it’s been agreed that the Court may consider this transcript of the proceedings before the Illinois trial court.

William O. Douglas:

They’re not cited in your brief.

Daniel M. Friedman:

No, because at that point, they have not been before the trial court in this case.

I may say that there is a good deal of more evidence than is summarized in this material on Page 8.

We think there’s much more than suspicion here, this is based on a reliable informant, the fact that he was told that the man was purchasing narcotics at this odd time that he was told that this man and his brother were purchasing narcotics that the agent himself had seen the brother purchase of it.

There is, we believe, the Court upon examination of this transcript, it will show that this we really think does clearly come within this Court’s Draper holding that there was probable cause in this case.

But my point is that in any event since the petitioner has litigated this question in the state court and the state court has ruled against him, we think the federal court was fully warranted in these circumstances in declining immediately thereafter to review that decision through the medium of a declaratory judgment.

Now, of course this Court has repeatedly pointed out that the declaratory judgment section vest great discretion in the trial court even though a matter is within the jurisdiction of the trial court, the Court is not required to give a declaratory judgment.

The Court has indicated that a declaratory judgment should be given only in those situations where really there is no other available remedy.

William O. Douglas:

I suppose then you had said that if he got to the federal court first, he then would have been out because he should have gone with the state court.

He goes to the state court first and he’s out because he had a finding.

Daniel M. Friedman:

I — I would — I would say yes if he had —

William O. Douglas:

Well, that — that of course would answer Rea too.

Daniel M. Friedman:

No, I shouldn’t Mr. Justice —

William O. Douglas:

And he could’ve contested that in the state.

Daniel M. Friedman:

I’d like to distinguish really because we think that the general supervisory authority over federal officers which this Court refers to and based its decision in Rea and which petitioner here invokes, we think does not entail any general authority in the federal courts to supervise federal officers.

We think that the basic rationale of Rea; the reason why in Rea this Court deemed it appropriate to invoke its supervisory jurisdiction over federal officials was because that case involved a misuse of the Court’s own process.

In that case, a warrant had been issued by United States Commissioner who is an officer of the District Court.

I’d like to emphasize to the Court that three times during the course of the opinion in the Rea case, the Court emphasizes the fact of the abusive process that was involved and states at one point that he had the relief he’s asked against the federal agent who obtained the property as a result of the abuse of process issued by a United States Commissioner.

And then later on, federal courts seek to enforce federal law and federal law extends to the process issuing from those courts.

And the Court also quoted a statement from Wise against Henkel which speaks of the exertion of the authority of the District Court in connection with the execution of the process of the Court.

Earl Warren:

When does he — when does the supervisory power attached for the first time?

Daniel M. Friedman:

Well, I would say Mr. Justice, once the man is arrested, once the man has been arrested by federal officials at that point under the rules he can go in to the Federal District Court and move to suppress.

Earl Warren:

Had he not been arrested by federal officials here?

Daniel M. Friedman:

He had been Mr. Justice.

Earl Warren:

Why couldn’t he go in then?

Daniel M. Friedman:

Because Mr. Justice, the federal officials immediately turned him over to the state prosecution and since there was no other connection of the federal courts with this matter, there was no federal order, there was no federal process involved, we think at that point this was a matter for the state.

But —

Earl Warren:

Do you mean that even though the power of the federal court’s supervisory power attaches when a federal agent arrest a man that was done in this case; that supervisory power can be defeated solely by the agent taking him to the state courts instead of to the federal courts?

Daniel M. Friedman:

Well, I — Mr. Chief Justice, I don’t think that issue was posed by this case because I don’t think here although there were allegations that he was taken over to the state court, the fact of the matter is that the usual policy of the Bureau of Narcotics is to cooperate and to transfer a lot of minor offenders over to the state court.

Earl Warren:

What is — what — under our rules, under this rules of criminal procedure, what is the duty of a federal agent when he arrest a man for a federal crime?

Daniel M. Friedman:

The duty is to take him before a commissioner —

Earl Warren:

All right.

Daniel M. Friedman:

— if he is — but I would suggest —

Earl Warren:

Did he do that?

Daniel M. Friedman:

No, he didn’t Mr. Chief Justice.

Earl Warren:

Then — then can he defeat the rules of the — of the Court merely by doing something different?

Daniel M. Friedman:

Well, —

Earl Warren:

— take him over to the state?

Daniel M. Friedman:

If I may answer that in two ways, two ways (Voice Overlap) —

Earl Warren:

Sure.

Daniel M. Friedman:

First, I think that that provision on arraigning him promptly must be read in the light of the provision of the statute authorizing the cooperation in returning him over.

Daniel M. Friedman:

I think that is in contemplation whether as a prospective federal criminal prosecution but where he is arrested and immediately turned over, I think it’s a different situation but —

Earl Warren:

Do you think that the — that the general statute authorizing the cooperation of federal officers or state officers supersedes the rules of this — of this Court or the administration if justice in federal courts?

Daniel M. Friedman:

No, I don’t say that Mr. Chief Justice.

Earl Warren:

Well, how do you avoid it?

How do you avoid it in this case?

Daniel M. Friedman:

Well, I avoid it basically because I think that even assuming in this case even let’s assume for the sake of argument that the agent’s refusal, failure to arraign this man were violation of the rules.

I think —

Earl Warren:

Well, isn’t it?

Daniel M. Friedman:

No, I would not concede that Mr. Chief Justice.

Earl Warren:

Well, there is no use of argument if you’re — if you’re not going to concede that.

Why is that, tell me why it isn’t a violation?

Daniel M. Friedman:

Because I think these rules, these rules are written in the contemplation of the procedures of the federal courts and there was here no procedure involved in the federal courts.

All that we had here was — these are the rules of federal criminal procedure which is stated to government proceedings in the federal courts and there was here no federal court procedure.

Earl Warren:

Well, then — then it’s your position that any time a federal officer arrest a man for a federal crime, he can, instead of taking to the commissioner, can turn him over to the local authorities for prosecution.

Daniel M. Friedman:

Without — Without on due delay and no attempt to evade I have to add this quote —

Earl Warren:

Well, why do you say without attempt to evade, is there any proof that there was no evasion of the rule?

Daniel M. Friedman:

There’s no — there’s no proof and there’s — there’s nothing but the naked allegation that there was an attempt to turn him over to avoid the harsher and stricter rules of the federal court.

Earl Warren:

All right, they want a hearing on that.

Why aren’t they entitled to it if they should be able to sustain that allegation?

Daniel M. Friedman:

Well, I think Mr. Chief Justice, they’re not entitled to a hearing here because first, this very issue has already been litigated in the state court.

Earl Warren:

Can they determine for the federal courts whether the federal rules have been respected?

Daniel M. Friedman:

No, they cannot.

Earl Warren:

Was that issue raised in that court?

Daniel M. Friedman:

It’s my understanding that he’s based — his motion to suppress was not based on the failure to arraign but rather on the failure to have any reasonable grounds for the search and seizure.

Earl Warren:

Well, that’s the other arm of the dilemma.

Daniel M. Friedman:

But I would like to suggest this, Mr. Chief Justice that the reason in this case, the federal courts should not be open to litigate these issues, is because the power and the interest of the federal courts in enforcing compliance with the federal rules is basically a power and an interest to supervise federal officers insofar as their conduct involves the federal courts themselves.

We — we don’t think there’s a basic supervisory authority, a basic policing function in the federal courts to police federal agents except insofar as there are some way, some — some involvement with the process of the federal court.

Earl Warren:

Well, you just said to me a few moments ago that our supervisory process attached the minute an agent arrested the man for federal crime.

Daniel M. Friedman:

It attaches in that if there has been nothing else done, the man can promptly move in the federal courts.

Now, I think that that situation, the reason in that situation, the motion to suppress is entertained because this is in effect in contemplation of a possible federal prosecution.

Daniel M. Friedman:

But —

(Inaudible)

Daniel M. Friedman:

I think he clearly could be prosecuted but the policy —

(Inaudible)

Daniel M. Friedman:

— federally I would think so.

(Inaudible)

Daniel M. Friedman:

It’s never been arraigned but he is —

John M. Harlan II:

Suppose you rearrested him.

Daniel M. Friedman:

Suppose we could rearrest.

Thank you, Mr. Justice.[Laughter]

I’d like to emphasize Mr. Chief Justice that — and members of the Court, but to Mr. Chief Justice particularly since he’s been pressing me on this that the real situation, the invocation of the powers of the federal courts to police officers, federal enforcement officers and their compliance with the federal rules of criminal procedure.

We think it’s basically designed to ensure the appropriate conduct of federal criminal trials.

Now, in the Rea case, this Court in invoking of the supervisory powers of the federal courts relied on the McNabb decision and we think the McNabb decision was very explicit that the rule of supervision there announced was intended to relate only to the federal courts.

I’d like to read to the Court —

(Inaudible)

Daniel M. Friedman:

If —

(Inaudible)

Daniel M. Friedman:

Well, he could be — he could be rearrested.

They might in that case have to get a warrant.

(Inaudible)

Daniel M. Friedman:

Well, that would —

(Inaudible)

Daniel M. Friedman:

I — Mr. Justice, I think when you originally asked your question, I suspected you are raising the problem of constitutional power where there’d be any double jeopardy to this prosecution.

(Inaudible)

Daniel M. Friedman:

Drop prosecution.

I —

(Inaudible)

Daniel M. Friedman:

Well, I think he could — I think he could certainly be indicted.

He might move to dismiss the indictment.

I don’t know what the effect of the non-arraignment in this situation.

William J. Brennan, Jr.:

(Inaudible)

Daniel M. Friedman:

I think it might be if in effect the Federal Government dropped the whole case and started a new case.

I would like to refer briefly to what —

William J. Brennan, Jr.:

(Inaudible)

Earl Warren:

Well, if a man will be put to all of that trouble — all of that trouble, why that shouldn’t he be able in a declaratory relief action to come here and ask the — ask the Court now to exercise a supervisory power?

Daniel M. Friedman:

Because there’s — Mr. Justice, at the moment, this case has been turned over to the state, the state prosecution is now pending and we think that absent to any connection with the federal courts that the federal court should not attempt to control the introduction of the evidence in the state courts that — I’d like if I may read to the Court two sentences from the conclusion of this Court’s opinion in the McNabb case and reversing that conviction there because of the improper introduction of the evidence acting under its supervisory powers, the Court said in so doing.

We confine ourselves to our limited function as the Court have ultimate review of the standards formulated and applied by federal courts in the trial of criminal cases.

We are not concern with law enforcement practices except insofar as courts themselves become instruments of law enforcement and I think when they speak of the court, this Court was clearly speaking of the federal courts.

In other words, it’s not concerned with generally policing the activities of federal law enforcement agents except insofar as the courts themselves become instruments of law enforcement.

The McNabb —

(Inaudible)

Daniel M. Friedman:

No, Mr. Justice.

I think not because I think —

(Inaudible)

Daniel M. Friedman:

That’s correct.

(Inaudible)

Daniel M. Friedman:

Did not and have been dismissed by the Government.

William J. Brennan, Jr.:

Finished?

Daniel M. Friedman:

Finished with —

William J. Brennan, Jr.:

(Inaudible)

Daniel M. Friedman:

Because I think Mr. Justice in that case there was an abuse of the Court’s process.

The basic manner by which the evidence had been obtained was a misuse of the Court’s process.

William J. Brennan, Jr.:

(Inaudible)

Daniel M. Friedman:

He was laid on the supervisory —

William J. Brennan, Jr.:

(Inaudible)

Daniel M. Friedman:

With a criminal proceeding in the federal courts or a proceeding in which the process of the federal court is involved.

Because the Court, three times, I repeat speaks in terms of the process, process of the federal court that is what is involved in the case.

Now, I think what the petitioner is doing here is attempting to extend the doctrine of Rea.

I think petitioner is attempting to extend the doctrine of Rea to reach a situation where the federal courts otherwise have no connection at all with the alleged violation of the federal rule.

And the petitioner suggest that whenever there’s an allegation that a federal law enforcement official has violated the federal rules, that in itself is sufficient to entitle him to go into the federal court and to get that matter adjudicated even though the federal courts have no connection with the case and further even though it is the state and not the federal courts which in the final analysis must decide whether to admit that evidence.

John M. Harlan II:

Your basic proposition I take it stands from the statute which authorize this federal agent to turn the law over to the state court prosecution.

Daniel M. Friedman:

That is correct.

Earl Warren:

Where’s —

John M. Harlan II:

Where’s the foundation of your argument?

Earl Warren:

Where does it say that?

Daniel M. Friedman:

It doesn’t say that in so many words.

Earl Warren:

Of course it doesn’t.

Daniel M. Friedman:

But it’s —

Earl Warren:

That’s why asked because I haven’t read.

Daniel M. Friedman:

But it does come very close to that, I think, Mr. Chief Justice at page 2 of our brief.

It speaks about cooperation in the institution and prosecution of cases in the courts of the United States and before the licensing boards and before courts of the several states.

So it contemplates cooperation between the Secretary of the Treasury and his officials and the States for the institution and prosecution of cases before the courts of the several states.

Now, the practice, and I say the practice in the Narcotics Bureau is in the case of minor offense where there is either a peddler, minor peddler or no interstate aspects to turn these cases over to the state courts for prosecution.

Earl Warren:

Now, you don’t mean to tell us that that’s the universal practice, do you?

We had a little case here just awhile back and I wrote the opinion on it where, where a Government agent stayed around the — the doctor’s office for three months until he induced afore addict who was trying to break himself off the habit to go out and get into the racket again and they gave him 15 years for — in the federal system.

Now, there couldn’t have been anything smaller or more picayunish than that and they didn’t turn that over to the state authorities —

Daniel M. Friedman:

No, that —

Earl Warren:

— so why do you tell us that that’s the —

Daniel M. Friedman:

Well —

Earl Warren:

— rule of the federal agents?

Daniel M. Friedman:

Well —

Earl Warren:

It isn’t?

Daniel M. Friedman:

— I have Mr. Chief Justice in figures.

I obtained some data on the extent and for the year 1959, there were a total of 1,725 federal narcotics cases brought and of those cases that brought in which the federal government had made the arrest and developed the case.

And of those 1,725 cases only 1,268 were prosecuted in the federal courts and 457 were turned over to the states for prosecution.

In other words, roughly, a quarter of all the federal narcotics cases developed were turned over to the state.

Earl Warren:

Can you tell me that none of those 400 were — were taken before a magistrate?

Daniel M. Friedman:

No, I cannot.

Earl Warren:

Well, then what good in your figures?

Daniel M. Friedman:

Well, I think —

Earl Warren:

They don’t amount to anything if — if after a man whose been arraigned, did he take him before the court and they decide they don’t want to prosecute him federally, they can dismiss it and not include in the state court but there’s a lot of difference between those cases if they did take him to a — to a magistrate and this case where they arrested him and then avoided taking him to the federal court by taking him down to the — the police court.

Daniel M. Friedman:

Mr. Chief Justice, all I can say is that, you say avoided him — avoided taking him in to the federal courts.

I think the practice is, I have to repeat this, the practice is that in minor cases at which we believe this is when the man is directly turned over to the state officials and we think that this is what is contemplated by the statute.

I’m not — I point out to the Court that the Illinois statute provides lesser penalties for narcotics violation in the federal statute.

The minimum penalties and the maximum penalties are less.

Now, I would like to just touch on one matter in closing which is the, the reason why we urge that where there has been no connection by the federal courts with the activities of the federal law enforcement officers that the federal courts should not attempt to control the federal officers insofar as the attempt introduced the evidence in the state court, and that as this Court has repeatedly pointed out that this is a very delicate area.

This area of interference by federal courts in the trial of state criminal cases as this Court described it in Stefanelli case, they said this touches perhaps the most sensitive source of friction between states and nation, namely, the active intrusion of the federal courts in the administration of the criminal law to the prosecution of crimes solely within the power of the States.

Earl Warren:

I might suggest the better way to — to avoid that conflict would be for the officers — federal officers when they arrest people to take them before the federal courts under the rule, and he won’t get into that conflict.

Daniel M. Friedman:

I would — I would agree Mr. Chief Justice.

If they did that, there wouldn’t be that problem but there would still be the problem, the basic problem of the basic argument which is made hereby the petitioner is not that he wasn’t arraigned but that that there was no reasonable basis for the search and seizure.

And as far as the lack of arraignment is concerned, Mr. Chief Justice, that it seems to me does not touch on the question of whether this evidence should be presented to the state courts.

I think there are other remedies available that this man’s rights have been violated but we’re dealing here in an area where although the order which petitioner seeks is not in terms in joining the conduct of the state proceeding, the inevitable effect of such an order if it were granted would be that the state prosecution to all intents and purposes would be stultify and —

Earl Warren:

As I — as I would view it, I would say that the man is not just objecting because he wasn’t arraigned, he is objecting that he was denied the right to — to be prosecuted if he is to be prosecuted under a federal arrest by the federal courts that are constituted for that purpose.

Daniel M. Friedman:

But he — Mr. Chief Justice, he is not being prosecuted by the federal courts and —

Earl Warren:

Being prosecuted the minute he was arrested.

Daniel M. Friedman:

He was being —

Earl Warren:

And you yourself said, Mr. Friedman that — that the supervisory power of this Court was passed the minute he was arrested.

Daniel M. Friedman:

The Court may have had power Mr. Chief Justice —

Earl Warren:

Yes.

Daniel M. Friedman:

— to whether the Court should exercise it in the circumstances —

Earl Warren:

Well, that’s different.

Daniel M. Friedman:

That’s a different question.

Earl Warren:

Yes.

Daniel M. Friedman:

And we think on the basis of these considerations, the importance of preserving the federal and state system the fact that under the Constitution under the Fourteenth Amendment, the State, if it sees fit, may even accept evidence which has been obtained as the result of unreasonable search and seizure.

There was, as I mentioned, Illinois does not follow that policy in view of the fact that here, there was no connection between the federal court and the alleged illegal activities of the federal officers.

In this case, it would be most inappropriate for the federal court to trench from this sensitive area and enjoin the introduction of evidence from the State to see.

Thank you.

Earl Warren:

Mr. Doherty.

James J. Doherty:

I would just like to say that in the Stefanelli versus Minard, the Court was asked to grant equitable relief to prevent the fruit of an unlawful search by New Jersey Police being introduced in a state trial.

Now, we’re not asking this Court to stay — state proceedings at all.

James J. Doherty:

Every single case they cite if — where somebody invoked the general equity power and this is not the power we’re talking about, we’re talking about the supervisory power.

John M. Harlan II:

What would be the effect of the declaratory judgment, did you get it?

James J. Doherty:

If we got it?

The effect would be to make impossible the — the progress of the state criminal prosecution (Voice Overlap) that it would be an incidental effect we respectfully submit.

John M. Harlan II:

By doing what?

James J. Doherty:

Well, in the event that we get the relief we’re seeking from the District Court or this Court on the ruling on the merits predicated upon the stipulation of the document.

We say this to you; the effect would be to destroy the state prosecution just exactly as it was in the Rea case where they couldn’t proceed without the testimony of the federal agents.

John M. Harlan II:

But did you get the injunction of some kind (Inaudible)?

James J. Doherty:

The individual said a real agent who owes obedience to your rules.

That’s all that we say.

And the supervisory power of this Court should not be subject to the whim of a state trial court.

People versus La Bostrie cited by the Government in their case all I say is read it and if that doesn’t fit within the category of what Mr. Justice Frankfurter said, then I will be astounded.

Now, the McNabb doctrine was for the public records specifically rejected in the People versus Hall at 413 Illinois.

Now, we don’t know what a minor offender is, they say the state law is less severe.

State law provides 2 to 10 years in the penitentiary for the first offense and five until life for the second offense and those — those aren’t minor that’s for possession.

So we’re not talking about small things.

I thank you very much for — are there any questions?

Thank you very much.