Supplemental Brief — Payton v. New York

FOR ARGUMENT

Supreme Court, U.S.

‘ _.ED

oct 3 1979

IN THE

Supreme Court of the Writer sepia oe curr

October Term, 1979

No. 78-5420

THEODORE PAYTON,

Appellant,

vs.

NEW YORK,

Appellee.

No. 78-5421

OBIE RIDDICK,

Appellant,

vs.

NEW YORK,

Appellee.

Appeals from the New York Court of Appeals

SUPPLEMENTAL BRIEF FOR APPELLANTS

Wituium FE. Hewierstein

Davm A. Lewis

Counsel for Appellants

The Legal Aid Society

15 Park Row—18th Floor

New York, New York 10038

(212) 577-3420

TABLE OF CONTENTS

I—Preface ........ Ung er en a es i da,

IJ—At a minimum, when a police officer seeks to

arrest a person in his own home, absent exigent

circumstances, the Fourth Amendment requires

that he possess an arrest warrant and that he

have probable cause to believe that the person

named in the warrant is at home when the war-

PERC URAL I ART SESE ec

IlI—Michigan v. DeFillippo, —— U.S. ——, 61 L.Ed.

2d 343 (1979), furnishes no basis upon which ap-

pellant Payton can be denied the relief which

is compelled by a determination of unconstitu-

tionality

eC eCeCCTCCCCOCCCOCOCOCOSTOSCOSOCCCOSCOOCOL CeO CCCCOCSeOo COTO Cee e eT ee Te ee

Conclusion

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CITATIONS

Cases:

Agnello v. United States, 269 U.S. 20 (1925)

Chimel v. California, 395 U.S. 752 (1969) 200000000000...

Commonwealth v. Terebieniec, Pa. , 25 Crim.

L. Rep. 2502 (September 12, 1979) (Pa. Super.

a Me aa Lar acca, Lesivctack al vadbichiscialadehecpucat coosenase

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

Dalia v. United States, —— U.S. ——, 60 L.Ed.2d

NEE RE oat Rese ee

Dorman v. United States, 435 F.2d 385 (D.C. Cir.

a cc ie hs saat dadewigacertecbiopbeenp

Government of the Virgin Islands v. Gereau, 502

F.2d 914 (3d Cir. 1974), cert. denied, 424 U.S. 917

(1976)

SERRE EEE EERE EERE EEE EEE EEE RHEE EEO EEE EEE EEE EEE HEHE ED

> i |

10

I!

PAGE

Harris v. United States, 331 U.S. 145 (1947) 125 5

Johnson v. United States, 333 U.S. 10 (1948) . 6

Jones v. United States, 357 U.S. 493 (1958) ... 3, 4,5

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) 7

McDonald v. United States, 335 U.S. 451 (1949) 6

Michigan v. DeFiilippo, US. , 61 L.Ed.2d

343 (1979) ......... Wa, sai See

Mineey v. Arizona, 437 US. 385 (1978) - Pty 11

People v. Sprovieri, 95 Ill. App.2d 10, 238 N.E.2d

315 (1978) « 3\:...::...2:.; 9, 12

People v. Wolgemuth, 69 ll. 2d 154, 370 N. F.2d 1067

(1977), cert. denied, 436 U.S. 908 (1978) 00000000... 7

Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975), rev’d

sub nom. Stone v. Powell, 428 U.S. 465 (1976) .... 10

United States v. Brown, 467 F.2d 419 (D.C. Cir.

United States v. Cravero, 545 F.2d 406 (5th Cir.

Rs ok jinieicrs Rauss sess dene ee

United States v. Ford, 553 F.2d 146 (D. C. ‘Cir.

oc EEE, STEEN ter (CAEL sedans [EEN as YO Cee | We 7

United States v. Hammond, 585 F.2d 26 (2d Cir.

NAR Bae SAT Rercaed Bes padina WV le oe A rch hak! eae 5

United States v. Harper, 550 F.2d 610 (10th Cir.),

cert, denied, 434 U.S. 837 (1977) ................. 7

United States v. Houle, —— F.2d —~— No. 78-1876

Cie Mere PANO Ey MTOR Ne cie licciedecses. 2

United States v. Jeffers, 342 U.S. 48 (1951) 0. 6

United States v. Joines, 246 F.2d 278 (3d Cir. 1957),

vacated and remanded, 357 U.S. 573 (1958) ........ 7

United States v. Joines, 258 F.2d 471 (3d Cir.), cert.

denied, 358 U.S. 880 (1958) 2....chcccccccccececcceseees 7

II!

PAGE

United States v. Lefkowitz, 285 U.S. 452 (1932) ._.. 5)

United States v. McKinney, 379 F.2d 259 (6th Cir.

8 gg MOREE Rave Bitedinys et me Oey UI i cia a RAS oc 7

United States v. Prescott, 581 F.2d 1343 (9th Cir.

BE hail ate al ies aan taeda gira 11

United States v. Reed, 572 F.2d 412 (2d Cir. 1978) . 5

United States v. Sumlin, 567 F.2d 684 (6th Cir. 1977),

cert. denied, 435 U.S. 932 (1978) ........... 7

United States v. United States District Court, 407

U.S. 297 (1972) .. Sh Pe TRL) MN Mey ed, See . 9

United States v. W atson, 423 U. Ss. 41 (1976) 9

United States v. Woods, 560 F.2d 660 (5th Cir. 1977) 7

Miscellaneous Authorities:

Advisory Committee Note, Proposed Amendments to

Federal Rules of Criminal Procedure, 75 (1978) 9

Amendments to Federal Rules of Criminal Procedure,

47 U.S.L.Wk. 4488, 4491 (May 1, 1979) ............. 3

Amsterdam, Perspectives on the Fourth Amendment,

58 Minn. L.. Rev. 349 (1974), ......460.0...0.0..4.......' 8,10

Comment, Warrantless Arrests in Homes: Another

Crisis for the Fourth Amendment, 7 Ford. Urb.

Maas WF CRIM oe entetese y esed ota 2

Kelder, Criminal Procedure, 30 Syracuse L. Rev. 15,

ey | SESS BPO ID Coes ie ween SORN Cae BRL is ONS Pen PE Pes 2

2 W. LaFave, Searcn anv Seizure (1978) _....... 8,9, 10,11

Note, The Constitutionality of Warrantless Home Ar-

rests, 78 Colum. L. Rev. 1550 (1978) 000000... 2

O’Connor, 4th Amendment and Warrantless Home

Arrests, New York Law Journal, pp. 1, 2 (Sep-

a BE PUR bn ire heap eta alone 2,10

Rotenberg & Tanzer, Searching for the Person to Be

Seized, 35 Ohio St. L.J. 56 (1974) 0... 3, 10

The Neglected Fourth Amendment Problem in Ar-

rest Entries, 23 Stan. L. Rev. 995 (1974) ............ 3

IN THE

Supreme Court of the United States

October Term, 1979

No. 78-5420

$<

Tneopore Payton,

Appellant,

vs.

New York,

Appellee.

No. 78-5421

Osre Rivpicr,

Appellant,

vs.

New York,

Appellee.

Appeals from the New York Court of Appeals

ee

SUPPLEMENTAL BRIEF FOR APPELLANTS

This brief is submitted to inform the Court of one

court decision and several articles which have appeared

since the original briefs were filed, to address an issue

which arose during oral argument on March 26, 1979, and

to respond to contentions advanced by appellee in its

Supplemental Brief.

I .

Preface

Since t! .ain briefs in these cases were filed, the

Eighth Cireuit has held that a warrantless entry to ar-

rest in a private dwelling is violative of the Fourth Amend-

ment. United States v. Houle, F.2d , No. 78-1876

(8th Cir. August 17, 1979). Several articles supporting ap-

pellants’ position have also appeared. Note, The Constitu-

tionality of Warrantless Home Arrests, 78 Colum. L. Rev.

1550 (1978); Kelder, Criminal Procedure, 30 Syracuse L.

Rev. 15, 64-71 (1979) ; O’Connor, 4th Amendment and War-

rantless Home Arrests, New York Law Journal, pp. 1, 2

(September 18, 1979); Comment, Warrantless Arrests in

Homes: Another Crisis for the Fourth Amendment, 7

Ford. Urb. L.J. 93. (1978-1979).

At a minimum, when a police officer seeks to arrest

a person in his own home, absent exigent circum-

stances, the Fourth Amendment requires that he pos-

sess an arrest warrant and that he have probable cause

to believe that the person named in the warrant is at

home when the warrant is executed.

a.

At the first argument of these cases, the question arose,

assuming a warrantless entry to arrest is violative of

tue Fourth Amendment, what type of warrant is required?

(Tr. Oral Arg. pp. 40-41). Our position, although as

stated the cause of some confusion, was that an arrest

warrant plus reasonable cause* to believe the person

*It was not our intention to differentiate between reasonable

cause and probable cause.

3

named in the warrant was at home at the time the warrant

was executed would suffice (Tr. Oral Arg. p. 47).

We adhere to this position but wish to make it clear

that we view this as a minimal Fourth Amendment require-

ment; one that is a sufficient basis for reversal of the two

judgments in the cases at bar. For in these cases the

New York statutory provisions at issue authorized entries

into private dwellings without any warrant, and the police,

in fact, possessed none. Moreover, both cases involved

arrest entries into the homes of the suspects themselves,

not into the homes of third persons for which, as we later

point out, the argument for a secrch warrant requirement

is thought by many to be exceptionally strong.

We also do not quarrel with the proposition that a

search warrant, which requires a magistrate to make the

dual determination—that there is probable cause to believe

the person sought has committed a crime and that there is

a sound basis for authorizing entry into particular prem-

ises—would afford greater protection to the privacy inter-

ests in the home than would an arrest warrant. And we

believe there is much to be said for the position that the

Fourth Amendment can be read to require a search war-

rant. See, Rotenberg & Tanzer, Searching for the Person

to Be Seized, 35 Ohio St. L.J. 56, 67 (1974); The Neglected

Fourth Amendment Problem in Arrest Entries, 23 Stan.

L. Rev. 995 (1974); Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L, Rev. 349, 358-360 (1974).!

1. Indeed, the recent amendment of Rule 41(b) of the Federal

Rules of Criminal Procedure by the Court so that it now provides for

issuance of a search warrant for a “person for whose arrest there is

probable cause, or who is unlawfully restrained” [47 U.S.L.Wk. 4488,

4491 (May 1, 1979)] supports the view that a search warrant is

required, particularly if the statement is accurate that “Riile 41

implements the Fourth Amendment...” Jones v. United States,

357 U.S. 493, 498 (1958).

4

However, we think it unnecessary to insist that in these

cases, which involve warrantless entries into the homes

of the persons sought, only a search warrant can protect

adequately the privacy interests at stake. We believe

there is more than ample support for this position in prior

decisions of this Court, in decisions of lower federal courts

and state courts and in the opinions of scholars who have

examined the question.

Should our net be thus too narrowly cast, the Court

believing that a search warrant, not an arrest warrant, is

required, appellants Payton and Riddick would still be

entitled to reversals because of the entirely warrantless

entries in their cases. And we would welcome such a result.

But under the circumstances of these cases, where there are

available to the Court several methods of resolution, we

see no benefit to appellants to insist that only a search war-

rant could have validated the police conduct here in ques-

tion.

The Court’s prior statements about arrest warrants,

either explicit or implicit, strongly support the conclusion

that an arrest warrant affords meaningful protection to the

privacy interests of persons sought by police in their own

homes. For example, in Jones v. United States, 357 U.S.

493 (1958), the Court appears to have assumed that an

arrest warrant would have validated the entry in that case

when it stated that a warrantless entry to arrest would

present the

grave constitutional question, namely, whether the

forceful nighttime entry into a dwelling to arrest a

person reasonably believed within, upon probable

cause that he committed a felony, under circum-

5)

stances where no reason appears why an arrest war-

rant could not have been sought, is consistent with

the Fourth Amendment.

357 U.S. at 499-500. To similar effect is the statement (per

Mr. Justice Stewart) in Coolidge v. New Hampshire, 403

U.S. 443 (1971) that ‘‘[t]he case of Warden v. Hayden,

supra, where the Court elaborated a ‘hot pursuit’ justifica-

tion for the police entry into the defendant’s house with-

out a warrant for his arrest, certainly stands by negative

implication for the proposition that an arrest warrant is

required in the absence of exigent cireumstances.’’ 403

U.S. at 480-481.

The Second Circuit, which held in United States v. Reed,

572 F.2d 412 (2d Cir. 1978) that an entry without an ar-

rest warrant violated the Fourth Amendment, has read

these statements and others as indicative of this Court’s

acceptance of arrest warrants in some circumstances:

Although we need not and do not decide this question

here, we note that counsel’s decision not to argue this

point [that a search warrant is required] seems to be

in accord with hints by the Supreme Court that, at

least in some circumstances, an arrest warrant may be

all that is required for law enforcement officers to

enter a private residence, or to search that residence,

for purposes of arresting the subject of the warrant.

United States v. Hammond, 585 F.2d 26, 28 n.1 (2d Cir.

1978).?

2. In addition to Jones and Coolidge, the court of appeals in

Hammond cited Harris v. United States, 331 U.S. 145, 153 (1947),

Chimel v. California, 395 U.S. 752, 755 (1969) and United States v.

Lefkowitz, 285 U.S. 452, 463-464 (1932). To that list, we would

also add Agnello vy. United States, 209 U.S. 20 (1925), in which the

entry into defendant Alba's home made pursuant to an arrest warrant

(footnote continued on next page)

6

This reading of the Court’s assessment of the efficacy

of arrest warrants would seem buttressed further by its

recent decision in Dalia v. United States, —— U.S. —,

60 L.Ed.2d 177 (1979). There the Court, per Mr. Justice

Powell, rejected the argument that separate authorization

must be obtained for a surreptitious entry into private

premises to place electronic surveillance equipment and

emphasized the distinction between a warrant’s content

and the manner of its execution, referring specifically to an

arrest warrant situation:

Often in executing a warrant the police may find it

necessary to interfere with privacy rights not ex-

plicitly considered by the judge who issued the war-

rant. For example, police executing an arrest war-

rant commonly find it necessary to enter the suspect’s

home in order to take him into custody, and they

thereby impinge on both privacy and the freedom of

movement. See, e.g., United States v. Cravero, 545

F.2d 406, 421 (CA5 1976) (on petition for rehearing).

60 L.Ed.2d at 193.

The Cravero case, cited in Dalia, holds that the Fourth

Amendment is not violated when police, armed with a valid

arrest warrant, enter private premises to execute the war-

rant. The Fifth Circuit rejected the argument that only

a search warrant could legitimate such an entry, reasoning

that once there is an arrest warrant naming the person,

‘there is no need to particularize the search—the arrest

was not questioned. 269 U.S. at 30; McDonald v. United States,

335 U.S. 451, 459 (1949) (Mr. Justice Jackson, concurring) ; United

States v. Jeffers, 342 U.S. 48, 50 (1951). The Court’s opinions in

both McDonald and Johnson vy. United States, 333 U.S. 10 (1948),

which seem to support a search warrant requirement, were written,

— in cases in which no warrant of any kind had been ob-

tained.

7

warrant has already done that. There is not the same

danger of the ‘general writ’ which is the reason for requir-

ing that a search warrant describe what specifie items po-

lice are allowed to search for.’’? 545 F.2d at 421 n.1. In

United States v. Woods, 560 F.2d 660 (5th Cir. 1977) the

court suggested further that its Cravero holding, which

concerned entry into third-party premises, applied a forti-

ori where officers entered the premises belonging to the sub-

ject of the arrest warrant. 560 F.2d at 666. Many other

courts share the same view. See, e.g., United States v.

Harper, 550 F.2d 610, 613-614 (10th Cir.), cert. denied, 434

U.S. 837 (1977); United States v. Brown, 467 F.2d 419

(D.C. Cir. 1972) (opinion of Mr. Justice Clark); United

States v. McKinney, 379 F.2d 259, 262-263 (6th Cir. 1967) ;

Lankford v. Gelston, 364 F.2d 197, 205-206 (4th Cir. 1966) ;

United States v. Joines, 258 F.2d 471 (3d Cir. 1958) ;° Peo-

ple v. Wolgemuth, 69 Tll.2d 154, 370 N.E.2d 1067 (1977),

cert. denied, 436 U.S. 908 (1978); Commonwealth v. Tere-

bieniec, Pa. ——, 25 Crim. L. Rep. 2502 (Sept. 12,

1979) (Pa. Super. Ct.); but see, United States v. Sumlin,

567 F.2d 684, 686 n.1 (6th Cir. 1977), cert. denieds 435 U.S.

932 (1978); United States v. Ford, 553 F.2d 146, 159 n.45

(D.C. Cir. 1977).

Appellee’s main objection to an arrest warrant require-

ment is that it does not provide enough protection for the

home. (Supp. Br. pp. 5,6). As we have shown in our main

brief, however, the arrest warrant provides substantial

3. The original decision in Joines (246 F.2d 278) was vacated

by this Court and remanded for consideration in light of Jones v.

United States, 357 U.S. 493 (1958). 357 U.S. 573 (1958). The

court of appeals adhered to its affirmance of the conviction because

entry into the suspect's premises had been made for the purpose of

executing an arrest warrant. United States v. Joines, 258 F.2d 471,

472-473 (3d Cir. 1958). Thereafter, the Court denied certiorari.

358 U.S. 880 (1958).

8 ‘

protection for the privacy of homes.) (Br. at 31-35). In-

deed, appellee concedes that ‘‘[a]ny restriction on the au-

thority of police officers to make arrests inside a dwelling

would provide some protection for the privacy of the

home,’’ and that a magistrate’s review would undoubtedly

screen out ‘‘some arrests, not based on probable cause to

believe the defendant committed a crime, that would have

been effected in a dwelling.’”’ (Supp. Br. p. 5). We think

these are important concesssions, because they render un-

tenable appellee’s denigration of the value of an arrest

warrant requirement.

Appellee’s argument not only ignores the common sense

conclusion that once there are legitimate privacy interests

to be protected, some protection is better than none, it over-

looks entirely the reality that when the premises to which

entry is sor ht pursuant to an arrest warrant are those

of the person named in the warrant, it is the magistrate’s

determination that there is probable cause to believe the

person has committed a crime that is of predominant im-

portance. As Professor LaFave has observed:

But where the premises to be entered are those of

the person sought to be arrested, it is less certain

whether it is the protection of an arrest warrant or the

protection of a search warrant which is most needed.

Some commentaturs have argued in favor of search

warrants even in these circumstances on the ground

that it is desirable here as well to have a judicial deter-

mination of the question whether the wanted person is

probably in the piace to be entered. The contention is

not without substance, although it may well be argued

that the need for a judicial determination on this prob-

able cause question is less substantial because (for the

reasons noted in the preceding subsection) it is of

necessity often resolved as a matter of inference from

9

a lack of information indicating the defendant is else-

where. Stated another way, it might well be contended

that protection of the privacy of the suspect’s premises

is more likely to be enhanced by a judicial determina-

tion of the suspect’s probable guilt than of this prob-

able presence at home.

2 W. LaFave, Searcy anp Setzure 385 (1978).4

Appellee’s contention that an arrest warrant require-

ment would undereut United States v. Watson, 423 U.S. 411

(1976) is also wrong. <A holding in this case that an arrest

warrant is required would be entirely consistent with Wat-

son. As we emphasized in our main brief (pp. 30-31), Wat-

son determined that warrantless public arrests were reason-

able because they had been universally accepted for so long.

423 U.S. at 423-424. Not only is that not true for arrests

in private dwellings (Br. pp. 40-55), the Court in Watson

was simply not required to focus on the interests affected

by ‘‘the physical entry of the home [which] is the chief

evil against which the wording of the Fourth Amendment is

directed ...’’ United States v. United States District Court,

407 U.S. 297, 313 (1972). It is one thing to allow ‘“‘logie to

defer to history’’ and permit a police officer to make an

arrest in public based on his assessment of probable cause.

It is quite something else to ignore logic when there is no

4. Commenting on the argument for a search warrant require-

ment even for entry into a suspect’s own premises, the Advisory

Committee Note on the amendment to Rule 41 observed that:

Case authority in support is lacking, and it may be that the

protections of a search warrant are less important in such a

situation because ordinarily “rudimentary police procedure dic-

tates that a suspect's residence be eliminated as a possible hiding

place before such a search is conducted elsewhere.” People v.

Sprovieri, 95 Ill. App.2d 10, 238 N.E.2d 115 (1978).

Advisory Committee Note, Proposed Amendments to Federal Rules

of Criminal Procedure, 75-76 (1978).

10

compelling history and to permit a police officer to enter

a person’s home without requiring that a magistrate make

the probable cause determination.

b.

Our position that the Fourth Amendment is satisfied by

an arrest warrant when it is executed reasonably in the

premises of the person named in the warrant does not mean

that a search warrant (or ‘‘special warrant’’ as appellee

wishes to call it) requirement would be an unsound reading

of the Amendment. To the contrary, noted scholars have

advanced logical arguments for such an interpretation.

Rotenberg & Tanzer, supra, 35 Ohio St. L.J. 56; O’Connor,

supra, 4th Amendment and Warrantless Home Arrests,

New York Law Journal, September 18, 1979, pp. 1, 2; Am-

sterdam, supra, 58 Minn. L. Rey. at 360. Also, a substan-

tial body of judicial opinion has developed which holds that

particularly with respect to arrest entries into dwellings of

third persons, only a search warrant requirement will suf-

fice because an arrest warrant issued for A affords no

protection at all for B whose premises are the subject of

the entry. See, e.g., Government of the Virgin Islands v.

Gereau, 502 F.2d 914, 928-929 (3d Cir. 1974), cert. denied,

424 U.S. 917 (1976); Rice v. Wolff, 513 F.2d 1280, 1291-1292

(8th Cir. 1975), rev’d sub nom. Stone v. Powell, 428 US.

465 (1976); 2 W. LaFave, Szarcu AnD SEIZURE, supra, at

384. But even with respect to entries into the homes of

suspects themselves, a search warrant, by definition, would

provide maximum protection for the privacy interests at

stake. And as appellee has noted (Supp. Br. p. 3), the

Ninth Cireuit has insisted that the warrant, whatever

it is called, describe both the place to be searched and

11

the person to be seized. United States v. Prescott, 581 F.2"

1343, 1850 (9th Cir. 1978). See, also, Dorman v. United |

States, 435 F.2d 385, 402 n.6 (D.C. Cir. 1969) (Wright, J.,

concurring and dissenting).

There is also no sound basis to appellee’s argument

that a search warrant would be an exceptionally onerous

burden on the police. The crux of the argument advanced

appears to be that ‘‘[p]leople are mobile’’ and that the

‘*basis for believing a particular person is in a particular

place may change from moment to moment.’? (Supp. Br.

p. 3). It may be true if a search warrant is required

that in some instances a warrant issued for specifie prem-

ises would have to be updated if the person sought was

known to have moved. But the incidence of that oceurring

where the warrant issued is for the person’s home would

be relatively slight. Cf. 2 W. LaFave, Srarcu anp Seizure,

supra, at 871. The most important consideration, however,

is that if the circumstances are not exigent, then the addi-

tional necessity of updating a warrant because a person

has moved is insignificant when weighed against the pri-

vacy of the home and the Court’s steadfast refusal to

dispense with the warrant requirement in non-exigent

circumstances. Mincey v. Arizona, 437 U.S. 385, 393-395

(1978).

We also take issue with appellee’s assertion that the

police in Payton could not have obtained a search warrant.

(No such argument is even proffered in Riddick.) That

the police observed a light under Payton’s door and heard

the sound of a radio from within did not convert a non-

exigent circumstance into one of exigency. Nor can it be

12

said that a magistrate could not have determined that

there was a reasonable basis for authorizing entry into

Payton’s apartment before the police approached his

door. The apartment was his and the police lacked mean-

ingful information that he was not at home. See, People

v. Sprovieri, 95 Ill. App.2d 10, 288 N.E.2d 115 (1978).

Thus, the police could easily have obtained search

warrants in both cases at bar because of the lack of ex-

igency in each. In addition to the crucial protection pro-

vided by an arrest warrant—the magistrate’s review of the

difficult question of probable guilt—the search warrants

would have provided additional protection by affording

review of the more routine question of where appellants

lived. Because of the value placed on the privacy of the

home, this Court could well decide that the fuller protec-

tion of the search warrant is required in cases such as

these. In light of the substantial protections afforded by.

both arrest and search warrants, however, one thing is

clear—an entry into a private home without any form of

warrant whatsoever is an unreasonable search and seizure

under the Fourth Amendment.

13

Iil.

Michigan v. DeFillippo, U.S. , 61 L.Ed.2d

343 (1979), furnishes no basis upon which appellant

Payton can be denied the relief which is compelled by

a determination of unconstitutionality.

Appellee again urges the Court to affirm the judgment

in the Payton case even if it declares the New York stat-

utory provisions at issue unconstitutional. This time the

argument is premised on the Court’s opinion in Michigan

v. DeFillippo, US. , 61 L.Ed.2d 8438 (1979). (Supp.

Br. pp. 7-12). Not only does DeFillippo furnish no basis

for appellee’s claim, we believe the Court’s very analysis

in DeFillippo parallels that which is presented in our

Reply Brief at pp. 11-12.

The Court’s opinion, as does our previous submission,

emphasizes specifically the distinction between a statute

which is ‘‘relevant to the validity of the arrest and search

only as it pertains to the ‘facts and circumstances’ ’’ which

constitute probable cause for arrest and those ‘‘which, by

their own terms, [authorize] searches under circumstances

which [do] not satisfy the traditional warrant and probable

cause requirements of the Fourth Amendment.”’ 61 L.Ed.

2d at 301. Its the latter type of statute which is involved

in these cas¢s, for it is the statutes themselves which au-

thorized warrantless entries to arrest in both.

¥

14

Conclusion

The judgments of the New York Court of Appeals

should be reversed.

Respectfully submitted,

Wim FE. Hevierstrer

Davin A. Lewis

Counsel for Appellants

October, 1979

ee