Respondents Brief — United States v. Watson

Supreme Court, U. $

FILED

IN THE mene 6

Supreme Court of the Uinited States

OCTOBER TERM, 1974

No. 74-538

UNITED STATES OF AMERICA,

HENRY OGLE WATSON,

Petitioner,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT

MICHAEL D. NASATIR

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

DONALD M. RE

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Respondent

a a aD ED

Washington, 0.C. e CLB PUBLISHERS « LAW PRINTING CO. « (202) 393-0625

,

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TABLE OF CONTENTS

Page

ec bbwccbabeeeee. 1

QUESTIONS PRESENTED ...................005. 1

BE NE REESE IS 4.5 Siprige eae a ee ee 2

A. AN ARREST IS INVALID IN THE

ABSENCE OF A WARRANT OR EXIGENT

a 3

ARGUMENT:

I. THE PRIVACY OF THE PERSON IS

TO BE ACCORDED AT LEAST AS

SACROSANCT A POSITION AS THE

PRIVACY OF ONE’S EFFECTS OR

REE, SSR GO eSdeuseissenedesecess 3

Il. THE APPLICATION OF THE FOURTH

AMENDMENT WARRANT REQUIRE-

MENTS TO AN ARREST IS HISTORI-

CALLY, RATIONALLY AND PRACTI-

CALLY MANDATED ................... 5

Ill. AN ALTERNATIVE BASIS EXISTS

FOR SUSTAINING THE DECISION OF

THE COURT BELOW .................. 13

B. THE CONSENT TO SEARCH OBTAINED

DURING THE COURSE OF ILLEGAL

CUSTODY MAY NOT BE RELIED ON TO

SUPPORT THE LATER SEARCH OF THE

a 15

1. The Principles Of Schneckloth vy.

Bustamante Are Inapplicable To The

nas ttc uedees nod cous 15

2. The Consent Obtained From

Respondent Was Illegal Even Under

The Principles Of Schneckloth y.

Bustamante, Supra ......... ccc ceeeee 20

CONCLUSION .............006. Si kee des ees 23

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Page

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S. 108 ..........0eeeees 13, 15

Beck v. Gilo, 379 US. GD C1ISGE) ow nc cc ccccccccces 6

Bumper v. North Carolina, 391 U.S. 543 (1968) ........ 17

Burrows v. Superior Court, 13 Cal.3d 238 (1974) ........ 18

Carroll v. United States, 267 U.S. 137 (1925) .......... 5

Chambers v. Maroney, 399 U.S. 42(1970) ............ 5

Chimel v. California, 395 U.S. 752 (1969) ............ 20

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....6,9, 15

Davis v. United States, 328 U.S. 582 (1946) ........... 21

Gerstein v. Pugh, __. ~ U.S. ____, 95 S.Ct. 854,

PE Tenktevhucdscetebekoesenee ss 5,6, 12

Giordenello v. United States, 357 U.S. 480 (1958) ..... 4

Henry v. United States, 361 U.S. 98 (1959) ........... 19

Katz v. United States, 389 U.S. 347 (1967) ........... 4

Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974) ..... 19

People v. Haven, 59 Cal.2d 713 (1963) .............. 18

People v. Lawler, 9 Cal.3d 156 (1973) ............0.- 18

People v. Superior Court, 71 Cal.2d 265 (1969) ........ 18

Preston v. United States, 376 U.S. 364, 84 S.Ct.

SE Oa Niavs hone au keh whe oe caeeues 15

Roaden v. Kentucky, 93 S.Ct. 2796 (1973) ........... 5

Schneckloth v. Bustamante, 412 U.S. 218 (1973) .... passim

Spinelli v. United States, 393 U.S.410 ......... 13, 14, 15

United States v. Kandlis, 432 F.2d 132 (9th Cir.

SE PRs Ce ed Aah ro 19

United States v. Mallides. 473 F.2d 859 (9th Cir.

A Se ee ee: Le he ee 19

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Page

United States v. Rabinowitz, 339 U.S. 56 (1950) ....... 20

United States v. Rothman, 492 F.2d 1260, 1265

GT eS eT ee Ce eee eee eee 18

United States v. Ventresca, 380 U.S. 102,106 ....... 7, 18

United States v. Watson, 504 F.2d 849 (1974) ......... l

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 74-538

UNITED STATES OF AMERICA,

Petitioner,

HENRY OGLE WATSON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT

OPINION BELOW

The opinion of the Court of Appeals is reported as

United States v. Watson, 504 F.2d 849 (1974).

QUESTIONS PRESENTED

1. Whether an arrest is invalid when conducted

without exigent circumstances, and without warrant, six

days after probable cause to arrest is obtained.

2

2. Whether a consent to search is invalid when

obtained during the term of an unlawful custody and as

a result of an illegal arrest.

STATEMENT

The following factual material is submitted as a

supplement to the statement contained in the Brief for

Petitioner.

The United States postal inspector, FRANK BAR-

BARICK, had contact with the informant AWAD

KHOURY, four or five times in 1972 regarding alleged

mail fraud cases concerning Mr. WATSON. Appendix

page 26. Khoury never testified in Court with regard to

any of the information he gave to the inspector, nor

had the information led to any arrests prior to the

arrest of respondent on August 23, 1972, nor to any

convictions. No corroboration was obtained with regard

to KHOURY ’s information regarding WATSON, and no

arrest of the respondent was made as a result of these

early meetings. On August 17, 1972, KHOURY told

BARBARICK that he (KHOURY) was about to obtain

a credit card from HENRY WATSON later that day.

Appendix, page 11-12. BARBARICK obtained the

credit card and KHOURY indicated he could obtain

more cards from respondent. At the agent’s insistence,

KHOURY arranged a meeting, which was postponed

several times, but which eventually transpired on

August 23, 1972. BARBARICK had arranged with

3

WATSON was placed under arrest for the card

obtained by BARBARICK on August 17, 1972, and not

based upon the signal received by the surveilling agent

on August 23, 1972. Appendix, page 23-24.

Respondent was then removed from the restaurant

and given his Miranda warnings. BARBARICK asked if

he could search respondent’s car, to which respondent

allegedly answered, “go ahead.” BARBARICK conduc-

ted a search of the automobile and discovered an

envelope on the driver’s side under the floormat. The

envelope was not opened until BARBARICK returned

to his office in downtown Los Angeles. Appendix, page

90. Two envelopes were contained inside the outside

envelope, and it was these two envelopes which

contained the credit cards which were the source of the

allegations in Counts | and 3.

A.AN ARREST !S INVALID IN THE

ABSENCE OF A WARRANT OR EXIGENT

CIRCUMSTANCES.

ARGUMENT

I.

THE PRIVACY OF THE PERSON IS TO BE

ACCORDED AT LEAST AS SACROSANCT

A POSITION AS THE PRIVACY OF ONE’S

EFFECTS OR DWELLING.

KHOURY for a signal to indicate if WATSON was in

possession of any stolen mail. The signal was given.

BARBARICK then entered the restaurant in which

KHOURY and respondent were meeting, and placed

respondent under arrest.

The Fourth Amendment to the United States

Constitution provides specific protection for the privacy

of the “person” as well as “houses, papers and effects.”

Rationally, unless the notions of privacy ensconced in

4

that Amendment are to become enmeshed in a

procedural morass, the protection of the person should

be accorded the greatest protection. The notion that

the places and things protected under the Fourth

Amendment receive that protection only as a logical

extension of protection to the person was underscored

in Katz v. United States, 389 U.S. 347 (1967). The

enormous body of litigation which has arisen under the

search and seizure provisions of the Fourth Amendment

on occasion results in a loss of perspective with regard

to the basic protection of that provision. This Court

has, from time to time, found it necessary to remind

law enforcement, the legal profession and scholars alike

that the ultimate privacy to be protected is the person

and that the constitutional guidelines established under

the Amendment apply with equal, if not greater, force

there. Katz vy. United States, supra; Giordenello vy.

United States, 357 U.S. 480 (1958).

As a result, while the accident of the course of

litigation has resulted in an analysis of the Fourth

Amendment protections primarily in a search and

seizure situation, the application of these principles to

the seizure of the person is by no means foreign or

novel to Fourth Amenement analysis but, in fact, plays

perhaps the most essential part in the application of the

salutory provisions.

v. Pugh,

5

Il.

THE APPLICATION OF THE FOURTH

AMENDMENT WARRANT REQUIREMENTS

TO AN ARREST IS_ HISTORICALLY,

RATIONALLY AND _ PRACTICALLY

MANDATED.

The balance of reasonableness which is to be struck

in the Fourth Amendment analysis has been described

as an “accommodation between the individual’s right to

liberty and the state’s duty to control crime.” Gerstein

US. 95 S.Ct. 854, 862 (1975).

This in turn evolved to an analysis of the legitimate

interests and pressures of law enforcement vs. the

privacy interest which an individual may legitimately

claim in the particular area sought to be intruded upon.

Recognition of the sanctity of the home has led to a

strict application of the warrant requirement in that

area. The existence of a perhaps lesser interest in the

privacy of a vehicle, when compared with the possible

greater difficulties posed to law enforcement, results in

a different balance being struck there. Chambers yv.

Maroney, 399 U.S. 42 (1970); Carroll v. United States,

267. U.S. 137 (1925). However, even in the latter

circumstance, the availability of search upon probable

cause alone is limited by the factual situation

presented to the seizing authority. Thus, in Roaden vy.

Kentucky, 93 S.Ct. 2796 (1973), the Court required

the demonstration prior to a search of an automobile

upon probable cause of “exigent circumstances in which

police action literally must be ‘now or never.’ ””

Similarly, the relative ease of obtaining a warrant and

the lack of necessity for swift action without prior

approval of a detached magistrate will also alter the

6

availability of search upon probable cause. Coolidge v.

New Hampshire, 403 U.S. 443 (1971).

The applicability of these principles to an arrest

clearly appears from this Court’s recent pronounce-

ments in Gerstein v. Pugh, supra. This Court has

recognized there that the Fourth Amendment requires

that the existence of probable cause “be decided by a

neutral and detached magistrate whenever possible.”

Ibid. This Court in Gerstein v. Pugh, while recognizing

that a preference for the use of an arrest warrant exists,

Beck v. Ohio, 379 U.S. 89 (1964), expressed concern

that an intolerable handicap for legitimate law enforce-

ment would result through requiring a factual justifica-

tion prior to “any arrest.” Ibid. But see Gerstein y.

Pugh, U.S.

Inasmuc” as the individual’s interest in his personal

privacy is at least as great as his interest in the privacy

of his dwelling or effects, the ability to arrest upon

probable cause without prior approval of the magistrate

must arise from the necessity to protect the legitimate

interests of law enforcement. A per se rule that a

warrant is required in no arrest situation is as

inappropriate as a per se rule with regard to searches.

Thus, the facts of each case must control] the necessity

for prior judicial evaluation. As was stated in Coolidge

v. New Hampshire, supra:

“The case of Warden v. Hayden... where the

court elaborated a ‘hot pursuit’ justification for

the police entry into the defendant’s house

without a warrant for his arrest, certainly stand by

negative implication for the proposition that an

arrest warrant is required in the absence of exigent

circumstances.” 403 U.S. 479-481.

When measured against these standards, it becomes

apparent that the facts of the instant case are

95 S.Ct. at 862, footnote 12.

7

insufficient to justify the actions of the federal

authorities without prior judicial approval.

The unique facts of this case give rise to the absence

of exigency or other legitimate law enforcement

concern for prompt action. The postal inspector who

effectuated the arrest testified without equivocation

that the respondent was arrested based solely upon the

credit card which had been provided six days prior. The

testimony of the inspector further indicated that every

opportunity existed to obtain such a warrant. Appendix

page 29ff. The facts clearly indicate that the arresting

agents had probable cause to arrest the respondent for

the offense on which he was ultimately arrested six

days prior to the arrest, but at no time attempted to

obtain prior judicial approval for that arrest. No

accommodation to legitimate law enforcement functions

would be served through permitting such a delay. On

the contrary, the position adopted by the Ninth Circuit

will inure to the benefit of law enforcement. As

indicated in the brief of petitioner, page 26, footnote

15, the propriety of an arrest will be more favorably

assessed if the officer’s belief regarding probable cause

has been approved by a detached judicial officer.

United States v. Ventresca, 380 U.S. 102, 106.

Similarly, officers will be able to refrain from making

improper arrests, once having been informed by a

magistrate that the evidence in their possession is

insufficient to substantiate probable cause. Petitioner’s

assertion in that same footnote that the interposition of

a magistrate will protect a suspect only in “close cases”

misses the point. For, an officer’s determination as to

the “closeness” or “obviousness” of probable cause lies

at the heart of the requirement of the imposition of a

detached judicial official.

Moreover, the use of a warrant in the present case

would insure that the arrest was made while evidence

was fresh and, to the extent that the officers feel the

suspect will be involved in future criminality, prevents

the commission of such crimes by effectuating an arrest

of that suspect. The inconvenience to the officers, on

the other hand, is minimal. No facts were produced to

demonstrate that a warrant could not have easily been

obtained during the six day period.

Petitioner has expounded a series of policies to

support its conclusions with regard to the propriety of

the Circuit Court’s ruling. Brief for Petitioner, pages

22-26. In general, each of these policy considerations

relies upon two assumptions made by petitioner which

are incorrect. The first arises from petitioner’s state-

ment of the issue as whether a warrant for arrest is

necessary for an arrest in a public place. The proper

issue, however, is whether a warrant is required prior to

an arrest when there exists no exigent circumstances for

a warrantless arrest and there exists abundant time to

obtain a warrant. The second of petitioner’s misconcep-

tions is that it interprets the opinion below as requiring

the officers to obtain a warrant as soon as probable

cause arises. That opinion, however, merely requires

that police officers, in a situation not involving exigent

circumstances, obtain an arrest warrant prior to the

arrest of the suspect. In the instant case, therefore, if

the officers were to base their arrest upon the card

obtained on August 17, 1972, there being no exigent

circumstances, a warrant was necessary.

Petitioner’s first consideration in his brief at page 22,

is that “a requirement that a warrant for arrest be

obtained as soon as public officials have accumulated

probable cause to arrest would put an unnecessary and

9

unfortunate premium upon haste ...” Petitioner goes

on to argue that even after probable cause to arrest

arises, officers may attempt to obtain additional

evidence. This argument fails in several respects. First,

as indicated above, the question is not whether a

warrant must be obtained “as soon as public officials

have accumulated probable cause” but whether the

warrant must be obtained prior to arrest.' Second,

petitioner's argument assumes that the investigation

must terminate upon the arrest of the suspect. This is

clearly not the case. Third, and with special regard to

the facts of the present case, the agents here did not

conduct an investigation with regard to the August 17

credit card, but were attempting to incriminate the

respondent with regard to new offenses.

Petitioner goes on to argue at page 23 of his brief

that circumstances may exist in which officers, although

armed with probable cause, may be investigating the

wrong suspect and that a continued period of

investigation might establish this person’s innocence.

Again, the decision of the Court of Appeal does not

require an immediate arrest. Secondly, the balance with

regard to innocence or guilt may be struck differently

'The incorrectness of the petitioner's position is adequately

underscored by the Circuit Court’s reliance upon Coolidge v.

New Hampshire, supra. The issue in that case was not whether

the search was illegal as a result of delay in searching, but rather

whether the search, in the absence of a warrant and exigent

circumstances was illegal. The fact of delay is only relevant with

regard to a determination as to whether exigency existed. In

both Coolidge and the present case, respondent does not

complain because the officers waited to arrest him, but, rather,

that they had every opportunity to obtain a warrant during that

term of delay and thus submit the issue of probable cause to a

magistrate.

10

by an officer involved in the “competitive enterprise of

ferreting out crime” than by a magistrate. As indicated

previously, this Court has required the issue of probable

cause to be submitted to a magistrate where practicable.

The argument is also inapplicable to the present case,

based upon the clear indication of the agent that the

arrest was for the initial offense, and that there could

therefore be no attempt to clear the respondent of this

crime.

Petitioner next argues that a rule requiring a warrant

“as soon as he has obtained probable cause’ would

expose officials to the horns of a dilemma. Petitioner

argues that if the officers fail to realize probable cause

exists, and rely upon other indicia of guilt, they risk

suppression of their later discoveries. This is clearly

incorrect. If the officers in the present case waited for

other indicia of guilt, and if they had arrested upon

such indicia of guilt, that arrest, if based upon exigent

circumstances, would have been valid. In such a

situation, the failure to arrest upon the initial offense

would not have vitiated either the arrest or the later

discoveries. Again, the issue is not the officers delayed

in making the arrest, but rather that the absence of

exigent circumstances and the opportunity to obtain a

warrant required that it be obtained.

Petitioner asserts in footnote 13 at page 24 of his

brief that KHOURY’s signal itself furnished probable

cause to arrest the respondent or strongly reinforced

the preexisting cause. The agents testified, however,

that they arrested the respondent only upon the August

17 credit card. They did not rely upon KHOURY’s

signal. There was no claim that exigency arose as a

result of that signal. In short, the government failed to

sustain its burden of proof with regard to the arrest

with regard to exigency.

11

Petitioner next asserts at pages 24-25 of the brief for

petitioner that the longer the officers postponed the

arrest, the less useful a warrant would become as a

shield against unjustified behavior. During this period of

delay, petitioner argues, officers will have an oppor-

tunity for “reflection’’ and may supplant the initial

grounds by other and “more persuasive grounds.” Once

again, the agents in the instant case were perfectly free

to continue their investigation. If they had discovered

evidence of another crime, they could have arrested

upon that evidence. However, once they determined to

make an arrest for the initial offense, in view of the

ability to obtain a warrant, they were required to do

so. The dilemma proposed by petitioner at footnote 14,

page 25, brief for petitioner, is similarly dispelled.

Petitioner there asserts that the officers would be “best

off should the magistrate decline to issue a warrant

when first approached.” In petitioner’s view, this would

allow the officers to continue their investigation. The

officers could then “arrange’’ to gather additional

evidence and arrest on the spot “on the basis of this

new evidence plus exigent circumstances.” The

dilemma, does not arise, simply because there is no

requirement that the officers obtain the warrant

immediately. Similarly, the officers, if they had

demonstrated exigent circumstances, could have arrested

respondent based upon probable cause plus exigent

circumstances. However, they chose not to do so, but

rather to rely upon the August 17 offense. Once again,

the burden was upon the government to justify the

12

warrantless arrest and their failure to establish or rely

upon exigency bars that consideration here.’

Petitioner’s final argument is that a policeman’s “‘on

the scene” assessment of probable cause is sufficient,

especially in view of this Court’s determination in

Gerstein vy. Pugh, No. 73-477, decided February 18,

1975, that a probable cause determination is necessary

promptly after arrest in order to justify continued

detention. While this position has great vitality in a

situation in which exigent circumstances exist, the

warrant requirement of the Fourth Amendment as

consistently interpreted by this Court requires that that

determination be made by a magistrate where practic-

able. This Court determined in Gerstein v. Pugh, that

even a slight detention raises serious issues of due

process. Where there is adequate opportunity to obtain

a warrant, the proper procedure is and should be to

submit that determination to a magistrate prior to the

arrest. Petitioner’s previous concern at page 23 of the

brief for petitioner for the possible arrest of innocent

suspects is completely inconsistent with the position at

pages 25-26 of the brief in failing to recognize the

severe hardship and constitutional deprivation which is

inherent in any detention or arrest.

In sum, the basic constitutional rationale expressed

on numerous occasions by this Court with regard to the

necessity for a detached magistrate’s determination of

probable cause, where practicable, applies most strongly

in an arrest situation. There is no doubt that the agents

7 As a result of the agent’s failure to rely upon the events of

August 23 with regard to the arrest of the respondent, this area

was not explored below by respondent’s counsel. Thus, very

sound legal, practical and constitutional reasons may have existed

for such non-reliance.

13

in the present case arrested as a result of the six day

old offense. The government in this case would be hard

put to claim a harmful effect upon law enforcement

through the utilization of the warrant procedure

inasmuch as the inspectors themselves apparently felt

that the six day lapse would have no harmful effects

upon their case or society. The benefit to the individual

is apparent and was recognized through the adoption of

the Fourth Amendment to the United States Constitu-

tion.

Il.

AN ALTERNATIVE BASIS EXISTS FOR

SUSTAINING THE DECISION OF THE

COURT BELOW.

Aside from the issues raised in the petition for writ

of certiorari, it appears that the information relied upon

by the postal inspector in order to arrest the

respondent was constitutionally inadequate. Under the

standards announced in Aguilar v. Texas, 378 U.S. 108

and Spinelli v. United States, 393 US. 410, a

determination of sufficiency of information to support

probable cause which relies upon information, must

present sufficient facts to establish the reliability or

credibility of that informant. The present situation is

somewhat unique in that the only information relative

to criminal conduct comes through the mouth of the

informant. Thus, it is absolutely essential, in order to

substantiate the arrest and subsequent search involved,

that this informant meet the Aguilar-Spinelli standards.

Inspector BARBARICK testified that he spoke with

KHOURY in 1972 and that on each of these occasions

14

the conversations involved Mr. WATSON. KHOURY

admittedly had been arrested for mail violations

himself. At the time of his arrest, which was the first

meeting with BARBARICK, KHOURY stated that he

had obtained the necessary documents to allow him to

engage in mail fraud for Mr. WATSON. However, no

corroboration was done by BARBARICK with regard to

this aspect of KHOURY ’s information, and no arrest of

the respondent was made for that crime. Appendix

pages 30-31. The other’ information which

BARBARICK received from KHOURY dealt with

associates of the respondent. However, KHOURY was

never surveilled by the agents to ascertain if he actually

did come in contact with these “associates.” No arrests

were made based upon this information, and KHOURY

never testified with regard to any of this information.

No arrests or convictions had arisen out of any of

KHOURY ’s information. The only corroboration which

was indulged in by the agents was apparently to

ascertain that, to their knowledge, the people

mentioned by KHOURY were in fact somehow

associated with WATSON. No corroboration was made

with regard to any facts which were at all criminal in

nature. Corroboration with regard to criminality,

however, is absolutely essential under the dictates of

Spinelli v. United States, supra. It is difficult to imagine,

therefore, that the information given at the suppression

hearing could establish the reliability of Mr. KHOURY

or his present credibility.

Furthermore, there was no corroboration made with

regard to the information given by KHOURY con-

cerning the present incident with the respondent.

BARBARICK took at face value all of the allegations

made by KHOURY, including that respondent had

15

given KHOURY the list of airports and the credit card

upon which the arrest was based. In contrast, although

a series of meetings were allegedly arranged between

KHOURY and respondent, two or three of them did

not actually take place. BARBARICK never overheard

any conversations between KHOURY and respondent.

It is inconceivable that these facts can meet the bare

minimum standards of the test enunciated by Aguilar v.

Texas, supra, and Spinelli v. United States, supra.* The

arrest of the respondent was therefore constitutionally

impermissible.

B.THE CONSENT TO SEARCH OBTAINED

DURING THE COURSE OF ILLEGAL

CUSTODY MAY NOT BE RELIED UPON

TO SUPPORT THE LATER SEARCH OF

THE AUTOMOBILE.

1. The principles of Schneckloth v. Bustamante,‘ are

inapplicable to the present case.

Petitioner has placed great reliance upon this Court’s

opinion in Schneckloth v. Bustamante, supra. Brief for

31t should be noted that an alternative ground, authorizing

suppression of the evidence presented to the Court of Appeals,

but not discussed in the opinion, is that the seizure of the

envelope with its unknown contents was itself impermissible and

could not be justified under any recognized constitutional

doctrine. The validity of a “plain view seizure” requires that it

be “immediately apparent to the police, that they have evidence

before them.” Coolidge v. New Hampshire, supra. The later

search of the envelope also violates the precepts of Preston v.

United States, 376 U.S. 364, 84 S.Ct. 881 (1964).

*412 U.S. 218 (1973).

16

Petitioner, pages 27-39. Two crucial distinctions,

however, exist between the instant case and the factual

situation considered in Schneckloth. The first is that

the respondent here was in custody at the time of the

elicitation of the purported consent. The second factor

is that the custody situation was itself illegal and in

violation of the Constitution. (See preceding argument.)

Each of these considerations is important to an analysis

of the legitimacy of the consent and is determinative of

the issue.

This Court in Schneckloth was careful to limit the

scope of its holding. The opinion concluded at 412 U.S.

249-250 with the caveat:

“Our decision today is a narrow one. We hold

only that when the subject of a search is not in

custody and the state attempts to justify a search

on the basis of his consent, the Fourth and

Fourteenth Amendments require that it demon-

strate that the consent was in fact voluntarily

given, and not the result of duress or coercion,

express or implied.”’ (Emphasis added)

The importance of the custodial nature of the

interrogation was clearly recognized by this Court.

Thus, custodial interrogation was termed “inherently

coercive.”” 412 U.S. at 240. See also 412 U.S. at 232.

The importance of this difference was outlined at 412

U.S. 228: ;

“But the Fourth and Fourteenth Amendments

require that a consent not be coerced, by explicit

or implicit means, by implied threat or covert

force. For, no matter how subtly the coercion was

applied, the resulting ‘consent’ would be no more

than a pretext for the unjustified police intrusion

against which the Fourth Amendment is directed.”

Someta a ee a

ee —

17

Thus, contrary to the petitioner’s contention, the

Court’s opinion in Schneckloth in fact recognized the

coercive nature of custodial interrogation and, it is

submitted, that this distinction alone would give rise to

a difference in result. Furthermore, it is apparent that

the Fifth Amendment guarantee against self-

incrimination is especially critical in a custody situation.

To a lay suspect, however, silence, in the face of a

request for consent, may be considered tantamount to

an admission. Recognition of this natural tendency to

assume guilt based upon silence or assertion of

constitutional right was made in Griffin v. California,

and the discussion there is equally

applicable to the present situation. Consequently,

exclusion of consent obtained through custodial request

is constitutionally compelled. Furthermore, unlike

Schneckloth v. Bustamante, supra, this Court is in the

present case free to exercise its supervisory powers over

the activities of the federal judiciary and authorities

involved.

The second very crucial difference between the

present case and Schneckloth is in the illegal nature of

the custody. Petitioner’s contention, as stated at pages

37ff of the brief for petitioner, is that lack of

knowledge on the part of the suspect of the illegality of

the arrest vitiates any proper consideration of that

illegality with regard to the later consent. However, it is

apparent that this Court has been very careful to avoid

utilization of illegal police procedure to obtain evidence

or testimony against a criminal defendant. The Court

has explicitly recognized coercion to be implicit in any

submission to a claim of lawful authority. Bumper v.

North Carolina, 391 U.S. 543 (1968). In the present

case, the exploitation of the illegal arrest is tantamount

18

to the assertion of lawful authority found coercive in

Bumper. In each case, the assertion of the right to

initiate the questioning was based upon a non-existent

authority. This Court has emphasized that the actions

of police officers are to be judged in a common sense

and non-technical manner. United States v. Ventresca,

supra. No less a standard should be applied to the

actions of a recently arrested suspect. It would be

unreasonable and hyper-technical to expect a criminal

defendant to stand mute in the face of an official and

apparently legal request to conduct a search. In such a

situation, the consent is inextricably bound to the prior

illegal activity. Interestingly, the Court’s opinion in

Schneckloth yv. Bustamante, supra, followed almost

precisely the holding of the California Supreme Court

on direct appeal. The California courts had long held

that the voluntariness of the consent was to be judged

upon the totality of the circumstances. The California

courts, however, have also held that consent obtained

during the course of an illegal detention or search is too

closely associated with that illegal activity to be valid.

Burrows v. Superior Court, 13 Cal.3d 238 (1974);

People v. Lawler, 9 Cal.3d 156 (1973); People vy.

Superior Court, 71 Cal.2d 265 (1969); People v. Haven,

59 Cal.2d 713 (1963). The Ninth Circuit has also

previously come to a similar conclusion in United States

v. Rothman, 492 F.2d 1260, 1265 (1973), where it was

noted:

“This is net a case in which a consent search was

necessary or proper. If probable cause for a search

was available the officers had ample time. to get a

warrant. (Citation omitted.) There was no risk that

evidence would be lost or destroyed or that

Rothman would flee. In short, there was no

justification for the coercive official tactics which

produced this consent.”

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19

Similarly, in Manning v. Jarnigan, 501 F.2d 408 (6th

Cir. 1974), the Court considered an automobile stop

conducted without probable cause. During the term of

the detention, consent to search was obtained and the

Court determined that the items seized pursuant to the

consent, as the fruit of the unlawful detention, should

have been suppressed. See also Henry v. United States,

361 U.S. 98 (1959); United States v. Mallides, 473 F.2d

859 (9th Cir. 1973); and United States v. Kandlis, 432

F.2d 132 (9th Cir. 1970).

The necessity for such a prophylactic action results

not only from a need to prevent judicial involvement in

illegal police activity, but to discourage such activity in

the first instance. Petitioner in its brief, has under-

scored the wide use of consent throughout federal and

state jurisdictions. This Court has also recognized the

widespread use of this search tactic. Schneckloth y.

Bustamante, supra. Thus, it is highly probable that

officers may be encouraged to conduct an illegal arrest

in the hopes of obtaining a valid consent to search

thereafter. In such a way, investigative agencies,

realizing the subtle coercive effects of custodial requests

to search, may initiate such arrests upon suspicion or

whim, realizing that the worst that can happen is that

the suspect would refuse to consent. On the other

hand, if the suspect falls prey to the pressures of

custody and does “consent” contraband or evidence,

although completely unknown to the officers prior .o

the search, could be uncovered. Persons innocently

going about their business could therefore be subject to

detention or arrest without any sufficient basis solely

upon the suspicion or belief of police authorities.

In this case, it is clear that the agents, armed with

probable cause to arrest the respondent, waited over a

20

period of several days until they felt the respondent

might be in a position in which they could, through

one means or another, initiate a search of the

respondent’s person and automobile in order to discover

additional items of evidence or contraband. The

possibility for abuse is highlighted not only by the fact

that the agents arrested the respondent based only upon

the information which they had possessed for six days

and not upon the information they obtained on the day

of arrest; but that the agent did not even bother to

verify his opinion of the nature of the contents of the

discovered envelope until returning to his office hours

later. It thus appears that the factual circumstances of

this case directly parallel the concern which this Court

expressed in Chimel v. California, 395 U.S. 752 (1969).

The pre-Chimel search incident to arrest rule, enshrined

in United States v. Rabinowitz, 339 U.S. 56 (1950),

presumably permitted officers, armed with probable

cause, to arrest a suspect and utilize that arrest as a

subterfuge to authorize a wholesale search of the

suspect’s dwelling. The prophylactic measures

announced in Chimel are equally applicable to the

arrest situation and the determination that the

“consent” in the present case is illegal is consistent with

these principles.

2. The Consent obtained from respondent was illegal

even under the principles of Schneckloth v.

Bustamante, supra.

As indicated previously, petitioner relies almost

exclusively upon this Court’s decision in Schneckloth v.

Bustamante, supra, with regard to the issue of the

21

voluntariness of the consent. The tenor of the

petitioner’s argument is that the only considerations

relevant to the voluntariness determination under

Schneckloth are those relating to the subjective

impressions of the respondent. A fair reading of

Schneckloth, however, supports no such limitation. This

Court has stated that the proper focus is on the

“totality of the circumstances.”’ Such “totality” would

appear to include more than the limited inquiry into

the subjective state of the respondent. Schneckloth cites

as support for its conclusion Davis v. United States, 328

U.S. 582 (1946). Two of the factors relied upon there

with regard to the voluntariness determination were

“the public character of the property” and the

“existence of the right to inspect.”” These inquiries have

no relevance with regard to the subjective state of the

alleged consentor, but, rather, bear upon the legality

and appropriateness of the police conduct. This Court

in Schneckloth went on to note:

“Two competing concerns must be accom-

modated in determining the meaning of a

‘voluntary’ consent—the legitimate need for such

searches and the equally important requirement of

assuring the absence of coercion.” 412 U.S. at

227.

The language chosen by the Court with regard to

“legitimate need” reflects the analysis made by this

Court in the preceding paragraph of the Schneckloth

opinion in which it was stressed that the standards

announced were a balance between a protection of the

security of the citizenry and the necessity for effective

and proper law enforcement. Thus, the Schneckloth

determination would seem to include in each case an

analysis of whether the consent as obtained served this

22

legitimate police function. It thus becomes apparent

that considerations as to the legality of the arrest and

detention of respondent are competely relevant in

determining the “voluntariness” of the consent. For,

exploitation of illegal procedure does not serve the

legitimate ends of effective law enforcement. The

interpretation sought by petitioner would have the

deleterious effect of encouraging to some degree an

illegal detention or arrest in the hopes of obtaining a

consent. However, there should be no right for an

investigative agency to benefit from a situation which it

had no right to create in the first instance.

This case thus presents a situation in which consent

was obtained during an illegal arrest and without

advisement of the right to refuse such authority. These

factors, together with the ability of this Court to

exercise its supervisory powers over the federal judiciary

and law enforcement agencies mandates that the

consent from the respondent be determined to be

invalid.

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23

CONCLUSION

For the foregoing reasons, the judgment of the

United States Court of Appeals for the Ninth Circuit

should be affirmed.

Respectfully submitted,

DATED: May 29, 1975 MICHAEL D. NASATIR

Nasatir, Sherman & Hirsch

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 653-3303

DONALD M. RE

Newton, Re & Russell

8383 Wilshire Boulevard, #510

Beverly Hills, CA 90211

(213) 655-5011

Attorneys for Respondent