# Petitioners Brief — Chimel v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0124%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 752 ## Text 6 . eee — —— ra ee e~ Midas a. Snes ta mam - _ “LIBRARY meets Office Supreme Gourt, U.S. guPREME Court's @ FILED JAN 21 1969 [_JOMN F. DAVIS, GLERM ’ : IN THE STPREME COURT OF THE UNITED otntes } g & P 4 OCTOBER TERM, 1968 epee “2 ON eT iT! g: wr prwteD No. 770 | ; | : | Trp Sreven Cummet, : . Petitioner, _ | CaLIFoRNIA, Can : Respondent | = f 7 j | | : ON WRIT OF CERTIORARI TO THE SUPREME COURT : | OF THE STATE OF CALIFORNIA 7 3 PETITIONER'S BRIEF | } : PETITION FOR CERTIORARI FILED MAY 16, 1968 CERTIORARI GRANTED NOVEMBER 25, 1968 — ° ;= » | | | | ee . : Kerra C. Monroz . 1428 North Broadway | Santa Ana, California 92706 : Attorney for Petitioner — ————— | i . ‘ ec . Terenas Den: Table of Authorities - Opinions Below INDEX TOPICAL INDEX J urisdiction ik . Constitutional Provision Involved .. Questions Presented Statement of Facts Summary of Argument ..... —- ARGUMENT: I. IIL. VI. ‘supported by authority The Fourth Amendment, viewed in historical perspective, was intended to require use of a valid search warrant for search of a home .... . The search in this case is the equivalent of. . or exceeds what might have been done under a general warrant ... The statement “no warrant is required” for search of a home is. erroneous and is not The test for constitutional validity of a war- rantless search enunciated in Rabinowitz pro- vides no guidance for the lower courts ...:..,..... . This Court’s cases can be harmonized to show that no search will be approved for which a search warrant could not have been obtained The rules enunciated by this -Court, as. ap- plied to the facts of this case, require moreren of the lower court’s judgment Page nN wnwpwnw ere FE 12 .B. 19. 21 i ge eee eee eee eee —> INDEX ; . Page Conclusion eceesntge | a, Appendix A Sues | en... “ Appendix B | on 39 TABLE OF AurHorities _ CONSTITUTIONS : Magna Carta se U. S. Constitution, Fourth Amendment ..............- TEXTS: | | ; | | ‘ Coke, Fourth Institute peer ty om 10 ~ Goodhart, pee the Ratio Decidendi ........ 22 CASES : “ mc - Abel.v. United States, 362 U.S. 217 0.2... ..-s..---- 24 Agnello v. United States, 269 U.S. 20 ................ 14, 16,18 - Aguilar v. Texas, 378 U. S. 108 22u20.2...c...ecscececesee - 6,24. Amos v. United States, 255 U.S. 313 ......... "ttle 23 Barnes v. Texas, 380 U. S. 258 ...... 5 Boyd vy. United States, 116.U. 8S. 616 ...............,..... 12 _ Brinegar v. Umited States, 338 U. S. 160 .....:...,... 22 Z . Camara v. Municipal Court, 387 U. S.-523 ......:. 15, 21 Carroll v. United States, 267 U. S. 182 ........ 17, 22, 26. Chapman v. California, 386 U. S. baibdibianieninen ; 31 Commonwealth v. Cockfield, 4]1 Pa: ree 35 , Crooker v. California, 357 U. S. 433 ........... , ae Edwards v. State, 38 Wis. 2d 332 ..........,... , ‘ied . 8. _ Entick v. Carrington, 19 How. St. Tr. +1029 .....10, 14 - -Giordenello v. United States, 357 U. S. 480 ........ 5 ‘Go-Bart Importing Co. v. United States, ‘282 U.S. 344 linings ae "Griffin v. California, 380 U. 8. 609 Guy v. Donald, 203 U. S. 399 Harris v. United States, 331 U. S. 145 ......13, 24, 25 Jackson v. State, 29 Wis. 2d 225 ..... :. «38 Johnson v. United States, 333 U. S. 10 -............--- 23: Jones v. United States, 357 U. 8-498 ........ ae 23° - Jones v. United States, 362 U. 8. 257 ..........-..--- 24 Katz v. United States, 389 U. S. 347 ne Ker v. California, 374 U.S. 23 22, 37 Kremen v. United States, 353 U. S. 346 ..........-. 25 Mapp v. Ohio, 367 U. S. 643 -.. 40 - ‘Marron v. United States, 275 U. S. 192 ........17, 18, 24, 27 McDonald v. United States, 335 U..S. 451 ........ = 5 _ Miller v. United States, 357 U. S. 301 .........-..--- ~ 2 _ Miranda v. Arizona, 384 U. SF fee eae People v. Braden, 34 Ill. 2d 516 ...... | 34 People v. Hill, 69 C. 2d —— (69 A. C. 568) -.. . 13 People v. Olszowy, 47 Mise. 2d 859 37 People v. Rosales, 68 C. 24 —— (68 A. C. 307) 38 Pointer v. Texas, 380 U. S. 400 in aes ‘ Preston v. United States, 376 U. S. 364 ............ 23 Rugendorf v. United States, 376 U. S. 528 ...... 24 Sabbath v. United States, —— U. S. —, 20 L. Ed. ae 38 ‘Schmerber v. lifornia, Se . geeremeanes 21, 22 Stanford v. Texas, 379 U. S. 4/6 -... 24 State v. Davis, 24 Conn. Sup.. 22 36 State v. Miller, 47 N. J. 273 ceed . 85 Stearsman v. State, 237 Ind. 149 ... ‘ala 34 Stoner v. California, 376 U. S. 483 ........ P 2 Taylor v. United States, 286 U. 8. 1 ce eiden ye oa Trupiano v. United States, 334 U. S. 699 -....... - 23 Twining v. New Jersey, 211 U. S. 78 am 397 iv INDEX ae oe | Page United States v. Kirschenblatt, 16 F. 2d 202 ........ 12,13 - Umited States v: Lefkowitz, 285 U. S, 452 00... 24, 25 United States v. Rabinowitz, 339 U. S. 56 ....14, 16, 17, 18, 19, mr 24, 28 United States v. Ventresca, 380 U. S. 102 panes -21,24 © Warden v. Hayden, 387 U: 8. lw Weeks v. United States, 232 U. S. Ee 16,23 West v. Lowisiana, 194 U.S. 258 2... ccceccepeoecoeene- 40 Wolf v. Colorado, 338 U. S. 25 ......2-..------- : 40 - THE SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1968 No. 770 S| Pep Steven CHIMEL, Petitioner, v8. Cauirornia, . Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COUBT — OF THE STATE OF CALIFORNIA PETITIONER’S BRIEF Opinions Below The opinion of the Court of Appeal, Fourth Appellate District (vacated by grant of hearing in State Supreme Court), is not officially r-ported, but is published in 61 Cal. Rptr. 714, People v. Chimel, August 30, 1967. The_ opinion of the California Supreme Court is reported in 68 C. 2d ——,° 67 Cal. Rptr. 421, April 10, 1968. The - companion opinion of the California Supreme Court, People v. Sesslin, is reported in 68 C. 2d ——,°* 67 Cal: Rptr. 409. *68 Adv. Cal. 448. #° 68 Adv. Cal. 431: Jurisdiction The judgment of ‘the California Supreme Court was entered on April 10, 1968. The petition for a writ of cer- tiorari was filed with this Court on May 16, 1968. The. jurisdiction of this Court is invoked under 28 U. S. Code section 1257(3) on the ground that a right guaranteed to the petitioner by the United States Constitution -has been i” infringed by the judgment of the lower court. The petition for a writ of certiorari was granted by order of this Court made on November 25, 1968. Constitutional Provision Involved . Amehdment Four to the United States Constitution: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not. be violated, and no. Warrants shall issue, but. upon ‘probable cause, supe ported by Oath or affirmation, and particularly de- scribing the’ place to be searched, and ‘the aurea or things to be seized. cs U. S. C..A., Constitution, Amendments 1 to 5, p. 102. Questions Presented — 1. Does the Fourth Amendment state a general prin- - ciple which requires antecedent justification before a mag- _ istrate of every search or seizure of person or property, subject only to judicially-created exceptions of necessity? 3 '. 9. Is the constitutionally permissible scope of a warrant- less arrest-based search equivalent to the permissible scope .- of a warrant-based search? Statement of Facts The Pulati home was burglarized on February 2, 1965. [28]* On that occasion defendant was absent from a meet- ing of a coin club which he had attended once a month for the preceding four months concurrently with the Pulatis. ' [33] Prior to that time, defendant had visited the Pulatis in their home to discuss coins generally with them and knew that they kept some coins there. [24] However, defendant ‘had never been in the room from which the burglarized property, two drawers containing coins, was taken. [37-38] . ‘On the night of August 14, 1965, the Money Vault, a ‘coin shop, was burglarized. [96-97] On the afternoon pre- - ceding the Money Vault burglary the defendant stated to a neighbor that he was going to “knock over a coin shop.” [247-48] On the. day following, defendant stated to the same neighbor that he had broken through one wall of the shop but had not entered due to some black wires he en- countered there. [250-51] Several weeks later, defendant : - stated to-another coin dealer that he had been involved in the burglary of the Money Vault. [260-61] During this same period of time, the last half of August, defendant took part in a conference at the Orange Police station which'was attended by defendant, one Charles Hamburger, attorney Everett Jones (representing Hamburger), and two officers of the Orange Police Department. [360, 376] This conference centered around the possibility of return- - * Bracketed numbers refer to pages of Reporter’s Transcript. ‘ 4 ing the stolen coins in.consideration of a civil release.’ [368] The’ defendant claimed that Slocum, the owner’ of the Money Vault, published the extent of his loss over the ‘coin circuit teletype and was, at the conference, claiming a greater loss than he had published. [373] Thereafter, some of the stolen coins were seized from Attorney Jones’ ‘Office. [376] Hamburger was never arrested, [378] Shortly prior to that conference, and on August 25, the investigating officer, Del Coma, had arrested defendant or the street without a warrant, based on probable cause to believe that defendant was implicated in the burglary of the Money Vault. [356-57, Op. Cal. S. Ct., p. 9, fn. 4]° After some questicning at the police\ station, defendant was released without being charged. | | Officer-Del Coma obtained a warrant Yor the arrest of defendant on September 13 at 10:39 a.\m. [325] This \ warrant was issued solély on the basis of. a complaint — . which had been filed in the Municipal Court, charging one crime only, the burglary of the Money Vault. [269, 558] The complaint is, in relevant part, set out in the footnote.’ * 68,Adv. Cal. at 454; —— Cal. Rptr. at ——. 1The complaint, as set forth in the — of the Court of Ap- peal, recited :° “Personally appeared beter me this ‘18th day of Septem-- ber, 1965 T, Dew Coma who, after being first duly sworn, deposes and ‘says: . “That on or.about the 14th day of August, 1965, at and within Orange County, California, the crime of Felony, to- ; wit: Violation of Section 459 of the Penal Code was com- mitted by Ted Steven Chimel who at the time and place last aforesaid, did then and there willfully, feloniously and bur- glariously enter a building known as The Money Vault, lo- cated ‘at 153 North Glassell Street, Orange, in said County | and State, with intent to commit theft. (footnote continued on next page) 5. ‘ The officer, at the time of receiving the warrant, knew where defendant lived, knew where he worked, knew -his telephone number and knew his hours of employment. (326, 370-71] Instead of executing the warrant upon its receipt according to its command, “forthwith té arrest the .. . defendant,” the officer waited until after 4:00 p. m., at which time he went, in company with two other officers, to defen- dant’s home, knowing that defendant was not there at that time. Having gained admission, the officers waited for defendant to come home from his employment. After a . short time, defendant entered the residence carrying’ his lunch bucket, whereupon Officer Del Coma placed him under arrest on the authority of the warrant. [270-7 a) ss. Over defendant’s ‘protest, and purporting to act on the _ authority of the arrest warrant, the officer commenced a search of defendant’s home. The search covered each bed- - room, the sewing room, thé living room, the kitchen, the attic, the bathroom and the garage. (274, 317-20] Drawers, boxes, cabinets, closets, suitcases’ and all portions of the premises not open to view were searched. [273, 329-30] This was a general search and was for nothing specific. ~ [316, 323, 330] No evidence was offered to show that the “All of which is contrary to the form, force and effect of _ the Statute in such cases made and provided and against the . peace and dignity of thepeople of the State of California. “Wherefore, said complainant’ prays that a warrant may — - be issued for’the arrest of said Ted’ Steven Chimel and that ( he be dealt’ with aceording to law.” The warrant which was issued on the basis of this complaint was © conéeded by the respondent and held by the Court of Appeal and the California Supreme Court to be constitutionally defective on the authority of Giordenello v. United States, 357 U. S. 480 (1958) ; Aguilar v. Texas, 378 U. S. 108 (1964) and Barnes v. Texas, 380 U. 8. 253 (1965). That portion of the lower courts’ holding is not in issue here. .t davies citieaaey tihng AS aS TRE Rite aS: en Ee ASS ORES ee Ape ete tee ee Ow ee PEE OO ee cece nam cmd ia eT ee ee eee ee é ; . . ‘ ee 7 oe é : officers had knowledge that any particular property was - likely to be found in defendant’s residence. At the time of this ‘séarch, the premises were in the joint possession of ‘defendant, his wife, and their small child--£270] No evidence was offered to show that anything other than’ egins had been reported | missing: from the Money . Vault. —(105- 09, 124.25] Nevertheless, during this ‘search Del ma’ seized a sizable collection of other items such ~~ as boxes, medals, razor blades, tokens, and erin wallets as well as seizing numerous coins. A day or two later ‘the Pulatis viewsd the seized items and positively identified certain medals, boxes, tokens and coin wallets as those ‘which were missing from their home | following the February burglary. [276] The Pulatis were _ unable to positively identify any coins. [312, 384-403] No item seized .was ever identified as having been taken from the Money Vault. (Op. Cal. Sup. Ct., p. 5]* Following this viewing Officers Gallmeister and Merino of the Santa fina Police Department filed a second com- _plaint» (inthe same general form as the first complaint) charging defe lant in two counts with burglary of thé , Pulati residence and with concealing and withholding stolen property. . Hi Defendant in the meantitne had been released on bail shortly after his arrest on the first warrant. Gallmeister and Merino therefore, solely on the basis of the second -complaint, obtained a second -warrant of arrest. The de- fendant was again, on September 16, arrested at his home ‘on the authority of this warrant. Gallmeister and Merino, : _. #68 ‘Adv: fi wt 452; — Cal. Rptr. at ——. | & who had observed and aided Del Coma sai the first-arrest and search, this time searched the residence themselves with Del Coma observing. [318-22] | The fruit of the ‘search of September 13, People’s Ex- hibits 11 and 12, was admitted into evidence, over stand- ing objection. on- Fourth Amendment grounds; at defen- de dant’s subsequent trial. [272, 279, 399-400; Cl. ‘Tr. 65-73]—~ “The evidence seized was admitted on the basis that it had been legally seized under the authority of a valid felony arrest warrant. [272] Summary of Argument The. Fourth Amendment, construed in the light of judicial history, was intended to require use of a valid search war- rant as a condition to searching a man’s home. The cases decided by this Court which. appear to make an exception to the search warrant requirement “can be harmonized to show that the exception to the search war- rant requirement, in the case of a home, is limited to situa- tions where the officer ‘has antecedently justified his right to arrest and has had additional information which would. have justified issuance of a search warrant: and has con- ducted the search ip, good faith. On the facts of this case there were no exigent circum- . stances and no antecedent justification ‘of any sort. In addi- tion, the officer did not have information which would have justified. i issuance of a search warrant and there is a strong inference that the search was not conducted i in, good faith. For those reasons, the search and the judgment founded thereupon is inconsistent with the Fourth Amendment ‘and should be disapproved. . ARGUMENT: SECTION I The Fourth hinitinniii Viewed in Historical Perspec- tive, Was Intended to Require Use of a ‘ella Search . Warrant for Bearch of a Home. "This. case presents, on uncontradicted evidence; the fun- * damental question of when, if ever, an officer will be re- quired to antecedently justify his actions in searching a home incident to-an arrest. This question necessarily in- ‘volves the secondary question of what scope of search is permissible with and without antecedent justification. Al- - _ though there are two questions. posed, each-is:so intimately. « . + related to the other as to make separate consideration of them the more difficult approach. Therefore, the right to — search and the permissible’ scope will be’ discussed con- . currently. The Fourth Amendment is: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable. searches and seizures, shall not be violated, and no. . Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly describ-— ing the place to be searched, and the persons or things to be’ seized. ’ This Ainandinatt, like the Constitution-of ‘ohio it is a part, states the principle in only*the broadest terms, and leaves the mechanics of its application to the ingenuity of the Court and the ne thus atlas room for adapta- Eases MOT 382s -9 tion to changing social conditions. For clarity, however, of the principle guaranteed by this Amendment, a brief glance at its ancestry and heritage may be helpful. The recognized foundation of ,constitutional: democracy is embodied in The Great Charter of King John, the Magna Carta. Several portions of that historic document are relevant to the case at bar: ° . Oe: ' } Clause 38: No Bailiff, for the future, shall put any man to his law, upon his own simple affirmation, with- out credible witnesses produced for that purpose. Clause 39: No freeman shall be seized, or imprisoned, - . dr dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will ae commit him to prison, excepting by the legal — of his ine or by the laws of the land.” Coke, in his reknowned Institutes, asserts flatly that searches of a man’s home, even for stolen goods, were not permitted. by Magna Carta: | _ And yet it is to be underftood, that if one’ be indicted of felony, the fherif may be proceffe thereupon after . | denyall made, &. break the houfe for his apprehenfion, or upon hue and cry of one that is flain or wounded, fo as he is in danger of death, or robbed, the kings officer that purfueth may (if denyall be made) break a houfe to apprehend the delinquent: but for juftices of peace to make warrants upon furmifes, for breaking the houfes of any fubjects to fearch for felons, or 2'The material quoted and the clause numbers are from String- ham, Magna Carta, Fountainhead of Freedom, App. B, Law. Coop. ; Pub., 1966. The clauses in the original document were not num- bered. to Clause 39 as set forth above. Nevertheless, it would - 10 stoln goods, is against Magna Carta, -.. and againft ~ ftatute of 42 K. 3. cap. 3. &e. Coke, 4 Inst. 176 (ca. 1629), idaia feo: Clark & Sons ed., London, 1817. Unfortunately, the footnote to the quoted ene to “Mag. Car. c729” as authority for the statement. Pre- sumably though, despite the difference in numbering which — might have come about in translation, Coke'had reference seem that Clause 38, when read together with 39, would also support the statement. But even in Coke’s time, this pro- hibition again€t searches of the home appears. to have been honored in not small measure by its breach. Thus in 4 Inst. 177, he states: a For though commonly the Houfes or cottages of poore’ and bafe people be by fuch warrants fearched; &c. yet if it be lawfull, the houfes of any fubjéct, be he never fo great, may be fearched, &. by fuch warrants upon bare furmifes. | | From this it seems probable that during the 400 years of existence of.the Great Charter at the time Coke-wrote, there had been a process of erosion of what he took to be an absolute prohibition against searching a man’s home to obtain that which will convict him. The practicalities of keeping the:law had worked a quiet, but small, intrusion on its letter. That process is further made clear in the celebrated case of Entick v. Carrington, 19 How. St. Tr. 1029 (1765). In Entick the Secretary of State had issued . a warrant to search Entick’s home for allegedly libellous papers. Learning of the ransack under warrant, Entick ee ee oo c a 11 ~ sued the King’ S messengers, Carrington and others, in the Court of Common Pleas for trespass. His case rested on the claim that the Secretary of State had no jurisdiction to issue a warrant to search anyone’s home for evidence. | Judgment for the plaintiff was affirmed per Lord Camden, — C. J. In the course of his: opinion, Lord Camden refers to ; Coke’s statement above: Sir Edward Coke denied the lawfulness of inintinn warrants to. search for stolen goods; 4 Inst. 176, 177, though now it prevails to be law, but in that case the justice and the informer must proceed with great cau- tion. There must be an oath that the party has had — his goods stolen, and has.strong reason to believe they ~ are concealed in such a place, but if the goods are not found there, he is a trespasser, i . [1558-1774] All E. R. Rep. 45. ' Notably, Lord Camden does not pare dispute Coke’s . earlier views but merely asserts that “it now prevails to be the la law” etc., thus suggesting that the then unlawful prac- ~“tiee which Coke had mentioned had become, in the inter- vening 140 years, a recognized exception. And so it often is with the law, an abuse corrected, as by Magna Carta, is corrected with an excess of zeal which impels the pendu- lum to swing too far the other way. It remains then for the courts to shape and fashion from their day-in, day-out -experience the exceptions and limitations. whieh will more . nearly accommodate the principle with the — in- terests remaining. : - But even with the exception Lord Camden chennitialiajal, one thing is transparently clear from the English cases: Any legal right to search a man’s home was very, very Br 12 ‘grudgingly given, and when given it was attended by the strictest safeguards to preclude any arbitrary rummaging through a man’s private possessions. And having just . fought a revolution based in part on the pernicious writs of assistance, it must be assumed that the framers of our own Constitution were fully familiar with the English law and had no intention of extending it an incl. See Boyd vy. United States, 116 U..S. 616 (1885). - SECTION I The Search in This Case Is the Equivalent of or Exceeds What Might Have Been Done Under a General Warrant. At this point a striking comparison emerges. . At one end of the spectrum, lies the Magna Carta, under which there is every reason to think a free man’s. -home was set aside in unimpaired privacy to him. This was his’ castle and it | _ was legally inviolate. At the other end of the spectrum lies’ the case at bar, No fact was ever presented to a magis- ° trate to- evidence that a crime had been committed. [68 LC. 2 —,* 439 P. 2d 335]. No fact was ever presented to a magistrate to evidence that this defendant had com- | mitted a crime. No fact ever was, and no fact could have ’ been, presented to a magistrate to evidence that certain goods were likely to be found in defendant’s home. (R. T. 316, 323, 330) The case at bar, for those reasons, under the holding of the California Supreme Court, in fact au- thorizes more than a writ of assistance would have. Chief _ Judge Learned Hand wrote of this in United States v. | Kirschenblatt, 16 F. 2d 202, 203 (CCA 2d, a *68 Adv. Cal. 452. 13 After arresting a man, in his house, to rummage at will - ' among his papers in ‘search of whatever will convict © him, appears to us to be indistinguishable from what oe might be done under a general warrant; indeed, the warrant would give more protection; for presumably it must be issued by a magistrate. True, by hypothesis © the power would not exist, if the supposed offender ~. were not found on the premises; but it is small con- isolation to know that one’s papers are safe only 80 “long as one is not at home. Kirschenblatt probably now lacks vitality as an authority, __ but it seems to be impossible to chart a logical course which _ permits an at es Hand’s quoted argument.’ | SECTION III - The Statement “No Warrant Is Required” for Search of a Home Is Erroneous and Is Not Supported by Authority. But it is claimed to be a different problem which is pre- sented by this case. It is said to be merely a search under- * taken incident to a'valid probable cause arrest. For that reason, there is no need to consider search warrants for the right to search the place of arrest when making a valid feloriy arrest is a practice of ancient origin” [Harris v. United” States, 331 U. S. 145 (1946)] and “is not. to be -.® Ag an aside, the California court has now decided that the offender need not even be home. Rather, it is sufficient that the officer “believe” he is at-home, despite the fact of identification - papers to the-contrary. No reason whatspever appears in the opinion for proceeding in the first place without a search warrant. People v. Hill, 69 C..2d. = _ Rptr. —— (Nov. 13, 1968). * 69 Adv. Cal. 568. | eae + 14 doubted.” [Agnello v. United States, 269 U. S. 20, 30 (1925) }* What of this ancient right that is not to be doubted? Is it a legitimate part of our jurisprudence or is it .a latter-day makeshift, spawned in error and nurtired in confusion? In Entick, Lord Camden states: “If this is _ law it would be found in our books, but no such law ever existed in this country.” In United States v. Rabinowitz, 339 U. S. 56 (1949) the Court crystallized for the first time in a holding the proposition that in an otherwise reasonable search “no warrant is required.” Is that statement sup- | ported by authorities preceding, and cited in, Rabinowitz? It seems appropriate at.this point to pause for definition of terms. Mr. Justice Holmes once aptly stated: As long as the matter to be considered is debatéd in - artificial terms there is a danger of being led by a ‘ technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied. Guy v. Donald, 203 U. S. 399, 406 (1906): _ Words, like photographs, serve their users only as they create an image’in the mind of the reader. But unlike photographs, a given combination of words may produce * as many different images as there are readers. For this reason it is imperative to communication of the discussion that follows that the elusive and skittish. term “probable cause” be firmly bolted down on a common ground of - meaning. ‘4 Despite its “ancient heritage,” neither Coke nor Lord Camden seem to have heard of it. e 15 bad “Probable cause” merely describes an evidenciary state. At its simplest it refers to a state of evidence upon which _ a reasonable belief in the truth of a given proposition may ‘ be founded. But it follows that the quantum and the type of: evidence which will reasonably support belief will de- pend entirely upon the proposition which is questioned. - Thus, discussion of “probable cause” standing alone lacks meaning. The tezm acquires meaning for practical appli- cation only if it is directed to a point of reference, — able cause to believe A.” - ma Generally, probable cause which will justify the arrest of a person ¢onsists of evidence from which a reasonable , man would infer a).that the acts constituting each element of a given crime have been performed and b) that a given , person committed those acts. — | | But it is. well settled [Camara v. Municipal Court, :387 U. 8S. 523 (1967)] that probable cause which will justify issuance of a ‘search warrant (in the case of a crime) re-.. ' quires an’ additional element: the evidence must indicate a) that a crime has been’ committed and b) that a given person committed it and ce) that the.described object of search is likely to be found in a given place. That this dis- tinction has caused the state egurts some difficulty is illus- trated by the selected state casi set forth in Appendix A, ‘ infra, p. 33. To ayoid any confusion as to meaning, the term “prob- able cause” will not be used. Rather, the phrase “cause for arrest” will be used to refer to the -evidenciary state required for issuance of an arrest warrant and “cause for search” will be used to refer to the evidenciary state re- quired for issuance of a search warrant. For convenience, since it is not in issue, it will be assumed that evidence 16 . sufficient to justify issuance of an arrest warrant would be sufficient to justify an arrest without warrant. Returning then to Rabinowite, Weeks’ v. United States, 232 U. S. 383 (1913) is cited for the proposition that the _. right to search the person incident to arrest jjs been rec- ognized here and if*England. This statement is undoubt- edly correct and rests on the most compelling necessity: the officer’s vital and immediate need to protect himself from the thrust of a hidden and unsuspected dagger. But this is no support for the proposition that no warrant is required for search of a man’s home. So Weeks is not the book where the law is found. The Rabinowitz Court then cites Agnello v. , United States, supra, as authority for the statement here challenged. Al- though the statement certainly appears in the-Agnello opinion (269 U. S. at 30), it was quite unnecessary to decision of the case and thus constitutes obiter dictum. That is to say, the Agnello opinion points.out that the only search which was incident to an arrest took place at the Alba home and its legality was not challenged. As to the facts surrounding the search at the Alba home, the Court devotes four sentences: ‘Upon the apparent consummation of the sale, the agents rushed in and arrested all the defendants.- They found some of the packages on the table where the _ transaction took place, and found others in the pockets of Frank Agnello. All contained cocaine. On searching Alba, they found the money given him by Napolitano. “In addition to being dictum, it is clear that the facts stated _ do not support the conclusion: reached. On the contrary, the facts portray a typical arrest of persons then”com- fiw? ane 17 ~ > mitting a felony, a search of their persons and a seizure .- of contraband in open view. The facts do not even remotely suggest any search other than that of the persons arrested. Agnello then is not the book: where the law is found. ‘Both Rabinowitz and Agnello cite Carroll v. United States, 267 U. S. 132 (1924) as authority for.the “right - to search the place of arrest.” But Carroll seems to be - authority, if anything, for the proposition that a search warrant-is an absolute requirement for the search of a home. In fact the Carroll Court devotes the better part of five pages of the opinion to an analysis of the applicable national prohibition statute and the legislative history thereof. The Court concludes from this analysis that Con- -gress had made an implied statutory grant of power to search vehicles of transportation without a warrant. But at the-same time, the analysis discloses an express statu- tory prohibition against searching any private dwelling ~ without a search warrant. To-do so was made a crime. 267 U. S. 146-47. Carroll, therefore, is not the book where the law is found. ; Finally, Rabinowitz relies on Bivins v. — States, 275 U. S. 192 (1927) as authority for the no-warrant rule. This is difficult to follow, for the officers in Marron.in fact had a valid warrant which authorized search of that very place. In the course of the search, they came on a ledger which later materially aided the prosecution of the case. This ledger was not described in the seargh warrant. _ The Marron Court justified seizure and use offthe ledger by a mild sprinkling: of legal fiction, holding that this was an instrumentality by which the crime was committed. Hav- ing gotten that far with tongue in cheek, the Court had no difficulty in concluding that seizure of the ledger was .; Ss Co en ene | _ justified as a seizure ofan . instrumentality of crime made in the course of effecting a valid ‘Arrest.’ Soin the firal analysis of M arron, recognizing the fiction employed as a valid device to serve legitimate Fourth Amendment ends, the case is not-a search case at all but is instead.a seizure’ ease. Certainly, therefore; a case of legal search under - valid search warrant cannot conceivably support the state- . . ment that “no warrant is required.” In consequence, we have no books in which this law is. found, “so it is sure that no such law ever existed i in this country. Pi For the foregoing reasons, it is respectfully urged that the statement in United States v. Rabinowitz.that in an. otHerwise reasonable search, a “warrant is not required” is erroneous. It. is a derelict on the waters of the law and deserves once and for all time to be put to its final rest. ’The error in citing Marron as authority. for a warrantless search probably arises from considering a search and seizure as © one act or transaction. Obviously, when viewed as two distinct ‘acts, they are utterly different concepts. A search,: of ‘necessity, — must precede any seizure, except as to items in’ open wiew, as in Agnello. And the. threshold question in a search case’ is—was it © legal to make a search at all? In Marron the search was perfectly. legal. It had been antecedently justifiéd by the issuance of a valid search warrant. For that reason the officérs not only ‘had. . the right, they were under a duty, to be where they were, doing what they were dging—searching. ‘And where violation of: a citi-. zen’s privacy is validly done. ‘under. judicial w&rrant, it does no ~ violence to the Fourth Amendment to permit seizure of evidence of the very crime for which the search is authorized, and which - comes to light in the course of an otherwise legal search. The ends '-of the Fourth Amendment are fully served by requiring antece- dent description of what is thought to be there without strait- . jacketing the seizure provision. The description requirement pre- cludes the making of a general search under a specific warrant. - os . id . : UREA EP sty EAP S OT LI TT RINSE SSE EME eR Tt SECTION IV The Test for Constitutional Validity of a Warrantless . Search Enunciated in Rabinowitz Provides No Guidance © for the Lower Courts. _ | aX The progression through 750 years of constitutional his- tory-under Magna Carta and under our own Constitution has shown that some right of search is required in the © 7 interest of effective law enforcement. The problem, how- ever, is determination of the parameters of reasonable and necessary search which will, at the same time, be faithful ° to the express term's of the Fourth Amendment. ‘In making such a determination, it is apparent that the standards set ' must ‘be such as to'permit their effective application by . the various lower courts; who will in fact be applying them in day-to-day cases. Rabinowitz has failed of its purpose inthat regard at least. On its facts,‘ the case was a very ‘limited and narrow holding which would. probably not be objectionable had the decisions of the lower courts under - it been limited to essentially similar fact situations. Un- fortunately, as the case at bar and the cases in Appendix A | rather vividly illustrate, there has been a dlear tendency for lower courts to reason: “If we find ‘cause to arrest’, ipso facto we have found ‘cause to search’.” Pee The problematical Rabinowitz standard is: The relevant test.is not whether it is reasonable to . procure a search warrant, but whether the search ‘was _ reasonable. That criterion depends upon the facts and. circumstances—the total atmosphere of the case. - As a practical matter, most cases begin and end in a court of original jurisdiction, a Justice Court, a Municipal Court, ~ a County Court or a District Court. And by like token, the determinatién of “reasonableness” usually begins and ends. within the broad “legal discretion” ofsthe particular judge sitting in the court of original jurisdiction, necessarily sub-° ject to the totality of his prior experience, his predilections and his unrealized but humanly inescapable biases and ' prejudices. And as those human realities exist so must they | express themselves in terms of results under a rule which asks—in fact requires—that a judge decide a constitutional issue by first considering the “total atmosphere of the case” and then determining whether it was “reasonable” in that: atmosphere to search without a warrant. In a given case, - would the same result be likely to obtain from.a judge who had ‘been appointed - to the bench from 20 years as a prose- - eutor as would from a judge who had been appointed from ' 20-years asa public defender? This Court’s recognition of the problems inherent in and ‘ if dissatisfaction’ with: ‘vague and general expressions of constitutional standards i is perhaps best illustrated by com- parison of relevant quotations from.some recent and some not-so-recent landmark cases dealing with the right to coun- - sel, due’ process, ‘confrontation of witnesses and admissi- bility of illegally obtained evidence. . These quotations are set forth in Appendix B, infra, p. 39. ly nied sao: glia aed: 21 pie SECTION WV “This Court's Cases Can Be Harmonized t> Show That No Search Wilt Be Approved for Which & Search Warrant Could Not Have Béen Obtained. As noted in the petition for certiorari, this Court has, “ $ in-several very recent cases, rather strongly suggested that - ° the*“warrant is not required” language of Rabinowitz, if it is the law at all, is to be accorded’ an extremely limited scope. See Schmerber v. California, 384 U. S. 757, (1966); A grudging. or negative attitude by reviewing courts ‘toward warrants will tend to discourage police officers - from submitting their evidence to a judicial - officer before acting ... [therefore}. the resolution of doubt- - - Camara v.Municipal Court, 387 U. S. 523° (1967) and Kate -v. United States, 389 U. S.'347 (1967). As a corollary, the Court has indicated its intention to, favor the use of search | warrants by avoiding hypertechnical wena ioe of the underlying affidavit: : | ee: - ful or marginal cases’ in this area should be largely - determined by the preference to be accorded to war- | rants. United States v. Piaitrensl, 380 U. S. 102, 108-09 (1965). However ina iad suggestion in Ventresca does: not . | appear, jn the light of this Court’s earlier cases, to be ~ _an innovation which first saw light in that case. Rather, there is substantial eviden® to. support the notion that limited in its direct expression to the factual result pt the cases decided. | s - - the language in that case merely expresses a premise whieh _. this Court. has applied over many years but which has been _ ng > ; Sega "22 The method anid by Professor. Goodhart* will be - utilized here to demonstrate the principle which seems to be reflected i in the results of the cases. The first group of cases, while ‘representative, are not applicable to the: facts of the case at bar, and so will be , limited in number. In this first group are the “exigent cir- - cumstances” ‘eases. They |\involve on their facts an arrest, a contemporaneous ‘or. subsequent search, or in one case even a prior search, and operative facts which show that obtain- class have almost uniformly met with this Court’s approval of the search involved. See, for example, Warden v. Hay- den, 387 U.S. 294 (1967) ; Schmerber v. California, supra; , ‘Brinegar v. United States, 338 U.S. 160 (1948) and Carroll _v. United States, 267 U. S. 132 (1924)." ‘The second group of cases are ey no stated evidence of exigent circumstances, but there was " Lactare. given at the: University, of London in 1930, Arthur L. _ Goodhart, Determiming the Ratio Decidendi of a. Case, published “in Jurisprudence in Attion, Baker, Voorhis, New York, 1953, p. 193 et seq.. Goodhart looks, in search of the rationale, to the’ op- erative factual result. of the decision viewed in light of the facts ‘of the case which the court found to be material. .The ros made here will extend this theory to a line of cases on the assu tion.that if a series of similar operative results follow from common to all ¢ cases considered, the principle rests in the’ pon facts. »- , 'Kerv: California, 374 U. s, 23 (1963) aight also. be included “in this group since there. was reliance by’ the majority on the exigent circumstance cy Senet U. 8. 61 (dissenting opinion). . Ati is preferred, however, to treat er in Appendix A, infra, p. 37, since the substantive authority of the case may be open to ques- tion. a eS 4 t POPE LIT, TS Beteregime = Bey EERIE LIED INE GIOIA IE Ee ONG OM LARS NIE 0s Ae OPI * . >. "ing a search warrant would have pose@ serious questions . ‘as to apprehension of the defendant, destruction of evi- dence, danger to persons, etc. In each case in this’ grdup’ ' there is a stated factual basis for immediacy.’ Cases in this , 23 . ; : at some point an arrest, a search which’ extended much | _ beyond the person. of.the arrestee, all conducted ‘without 4 “S$ any warrant, and all disapproved on-review.. While several _ of these cases involve searches which were, on their facts, too remote. in time or distance to be judged “incidental”, all were suggested to be searches made as an “incident to - a valid arrest.”* Thesé cases are: Katz v. United States, supra; Stoner v. California, 376 U. S. 483 (1964) ; Jones v. United States, 357 U. S. 493 (1958) ; Miller v.. United States, 357. U. S. 301 (1958) ; McDonald v. United States, 335 U. S. 451 (1948) ; Johnson v..United States, 333 U. S. 10 (1947) ; Trupiano v. United States, 334 U. 8. 699 (1947) ; Go-Bart - - Importing Co. v. Umted States, 282-U. S. 344 (1930) and - the dean of the search cases, Weeks v. United States, 232 U.S. 383 (1913). * ; Finally; the last group of cases involve an arrest, a re- lated search and the discovery of damning evidence. But _ each case in this group, has been. founded on “use, by the. 8 Pease v. United ‘States, “ U. S. 364 (1964), decided by a unanimous Court, is instructive as to what is not an “incidental” search. See also Taylor v. United States, 286 U. S. 1 (1931) and Amos v. United States, 255 U.S. 313 (1920) for similar-holdings.. Some question may be raised as to the utility, as 4 communication - device, of the concept of a search being “too remote”, or the affir- mative, that a search thay be permissible because it is contem- poraneous with an arrest as to time and place: This terminology. - would appear to obscure with-an easily, applied, and equally easily _——mis-applied,, abel the two questions which are always raised in a search case: Can any search be made consistent with the Fourth Amendment, and if so, within what permissible scope? Since the purpose of ‘the Fourth Amendment's .prohibition against unrea- sonable searches must rest on concern for protection of the citizen’s privacy from arbitrary governmental invasion, a completely = tangible concept, serious doubt exists as to the practicability, if © not the impossibility, of honoring such an intangible concept by . means of a mechanical time and nce formula. Nevertheless, © the rule; despite its shortcomings, does have the virtue of adminis- trative simplicity in those waaay as ace it applies. searching officer, of a valid warrant, either for arrest or search. Thus, these are, the “antecedent justification” cases. The cases in this group, with one exception which will be discussed, have up ormly met with this: Court’s approval as to legality of the search. The cases are: United States — Ventresca, 380 U. S: 102 (1965) ; ‘Rugendorf v. United - . States, 376 U. Ss. 528. (1964) ; Jones v. ‘United States, 362 - U.S. 257 (1960); Abel v. Untted States, 362 U. S. 217 (1960); United States v. Rabinowite, supra; Harris. v. - United: States, 331-U. S. 145 (1946) ; ‘United States _v.— Lefkowitz; 285 U. S. 452 (1931); and Marron-v. United . States, 275 U. + er ee __ Lefkowitz, ‘of course, is the ‘ileal in the last group of eases for there was a valid arrest warrant but the- search was nevertheless disapproved. However, a careful review of the facts of Rabinowitz and Harris suggests that there is-a valid factual distinction which harmonizes — wite with this group. - ‘* : Rabinowitz devotes most of two: pages of the opinion to.a detailed statement.of the facts known to the officer \at the time of search. 339. U. S. 57-58. The Court made . a specific finding that. the search was neither general. nor exploratory. 339 U. S: 62: The facts known to the officer - as stated by the Court doubtless would have-been sufficient". to’ have authorized igsuance of a. search warrant. Thus, on the. facts the ‘search could have been conducted under a valid warrant. Therefore, the departure permitted by Rabinowitz, without minimizing it, was -a technical de- parture. s Neither Stanford v. Texas, 379 U. S. 476 (2006) 2 nor ‘Liie v. Texas, 378 U. S. 108 (1964) appear in the foregoing group for the reason that the warrants used in those cases were Specifi- eally held to be invalid. The justification for ‘those searches, though weeny was epny janumicient; ". - si 2 RNA tari tamale TEN RI 0 ine tO TE The same is true of ‘Harris on the material facts stated. by the Court. There was a specific finding that the search ’ ‘was neither general nor exploratory. 331-U. S. 153. The eee search was directed to discovery of two cancelled $10,000:00 , _ checks and was found by-this Court: to have been in good / ... faith so condneted. Presumably, the finding of specifigity- 7 was sufficient to infer that the information known to the » } _-—arresting officers would have been sufficient to have au- ai thorized issuance of a ‘search warrant. for the cliecks. So, “~ the departure permitted by Harris is similarly a technical ' departure. pr goog ake ont J we\t et aaa v In contrast with that situation, the Lefkowitz opinion - specifigally finds that the search was both’ general and ex- coy ploratory. No warrant-could have issued for a general and , exploratory search.” Therefore, Lefkowitz does not appear, on its material facts, to be inconsistent with the other cited cases." | aA | - From oe oe groups of cases, several rules of gen- - eral application which have in fact been applied over the ‘years can be discerned: — | ! y 5 A Phe-Exigent Circumstance Rule: ‘An arrest upon: a i “cause to arrest”, without antecedent justification, will justify a search similar in scope to that which might be . 1 Lefkowitz is also troubled with the “mere evidence” rule, and . that may be the basis of decision. The teaching is the same: ° That which could not have been done under warrant will not’ be .countenanced “incident to arrest.” ” _ ™ Kremen vy. United States, 353 U. S. 346 (1957) has been - omitted from this group because of the exceptional facts. on which | it rests. Under a valid warrant,.the officers seized and removed to, their office, 200 miles distant, the entire contents of a house.. The inventory of goods seizéd‘ occupies 11 pages uf an appendix. to the opinion. fie : nate co ee a hey os. " ees os eT es - . - — AUTEN ee * ’ “ - » _ made under a valid neers warrant, if ny are proven facts which support a finding of exigent circumstances. 2. The Plain View. Rule: An arrest upon “cause to arrest”, without antecedent justification, will justify _ only a search of the person of the arrestee and seizure of instrumentalities, contraband qr evidence which is ' in plain. view at the place of arrest. 3. The Antecedent*Justification Rule: An arrest upon a valid arrest warrant, supported by antecedent jus- - tification, will justify a search similar in scope to that which might be made under a valid search warrant, if there are proven facts which support a finding that the officer had information which would have authorized issuance of a search warrant and that he ected in good faith in conduct of the search. | ‘The tinegolaig idee, which appear to articulate what this Court hds' in fact done over. the years, do not, with . the possible exception of the third-rule, do violence to the: Fourth Amendment. The first merely states a proposition -which is rooted in. necessity and relies for its vitality in proof of a valid reason for immediacy. Since evidence and proof of a legitimate need for: haste involves a relatively objective consideration,.as opposed to proof of “reason-- ableness”, this exception does not seem to have been par: ticularly troublesome. The Congress has impliedly ap- proved | this rule: Carroll v. “United States, supra. The ‘second rule illustrates an exception. which has a very lengthy legal title and which is founded -on the most. compelling necessity as to search of the person.” As to 42 For what it may 7 a careful reading of the record ir . ‘this case fails to reveal any evidence that the primary search, of the defendant’s person, was ever made. = . = ‘ . -~ . PER POLIS PEP LYST FOS A a0 Rp, eaten Lie ame enmecton cad aan wa eyes 5 : y — a -the second part of this rule, seizure of things in plain view, -it is merely an expression of .the “officer need not be blinded” language which i is well supported in logic and i in _ the cases. See Marron, sugra, p. 18, fn. 5. | The third rule has led to ‘some rather significant diffi- culties and is somewhat troublesome from a logical point of view. The exception is probably founded on the under- standable reluctance of this Court, or any other court for that matter, to invalidate a search and liberate a proven criminal when indeed the factual situation has been shown to be consistent with the Fourth Amendment and there has been only a failure to comply. with the strict letter of the law. Primarily this rule raises an evidenciary problem. . The validity of the search will, in,almost evety case, tuth on the probity of the testimony later given by the searching officer, limited only by the reeord which supports the arrest warrant. But no matter the probity of the officer one way or the other, and assuming the officer’s later testimony is not in any way influenced by what the search reveals (an . to human experience), this rule would © seem to be undesirable for law enforcement. It assumes that the officer in fact has\had time and has had epportunity and has in fact obtai ed a valid arrest warrant from a- magistrate. For that reason, it is impossible to say that . any-burden whatsoever would have been imposed to have - obtained the correct process, a séarch warrant. So, under those conditions, to proceed with merely an arrest warrant exposes the officer to. possible invalidation of the search without even any additional convenience to him.. The only benefit to the officer under this rule would arise when he did not have “cause to search” and, at least on the assump- tions made, that search would ulimately fail-anyhow. Per- haps, though, this rule was. intended to be an extremely ; ot 1 PRADA LILY ED 4 OPO ATO SM AOL AD EAL MH IE RO Tt CEE 5 cometh cael EIT III TO ee ey PONT 28 narrow exception which would ‘see very little application from day to day due to the difficulties noted. Rabinowitz | ‘supports. this view. Unfortunately, as ‘this case and those briefed in,.Appendix A, infra, p. 38, illustrate, the rule "has received the broadest possible application by literally .mangling into its protective confines cases which have not . the. vaguest factual resemblance to the basis- for the Tule. . ~ Finally, these rules, if they are. validly deduced, neces- “sarily preclude by their reference to. search warrants any search which is general qr exploratory. In addition, they’ militate against the arrest which is “manuevered” SO. as - to take place on premises which the officer may desire to seach. “Manuevering” clearly. is inconsistent with pro- ceeding under a “good faith” exception. Having examined ‘the law generally, the facts of the tase at bar will now be examined with reference to this law. - SECTION VI The Rules Enunciated by This Court, as Applied to the Facts of This Case,.Require wasters of the Lower Court's sagument. pale a Officer Del Coma did, on ‘September 13, 1965, have facts knorn to him’ which constituted “cause for arrest” of the defendant for burglary of the Money Vault. [R. T. 96-97, 247-48, 250-51, 260-61] There were no “exigent circum- » @ stances. << {Resp. to Pet. for Cert., p. 11]- The officer did . . not antecedently justify his right to arrest the ‘defendant. {R.,T. 558; p. 4, supra, fn. 1] The officer did not have‘in- ‘formation which would have constituted “cause for search.” [R. T. 316, 323, 330] The officer, inferably, “manuevered” _ the arrest, of defendant so as to make defendant’s home the ¢ el eee Ps smilie 29 place of arrest. [R. T: 271] Substantiation of.“manuever- “ing” is found in the officer’s earlier warrantless arrest of | - defendant on the street [Op. Cal. Sup. Ct. p.-9°]-and the — - fact of two identical'searches of defendant’s home conducted . by the same cfficeis within three days of. one another. [R. T. 271,.318]- | ee) The fundamental point raiséd by these facts is that if the officer had applied for a search warrant prior to the search of Septembex 13, one could not have been issued consistent. with the Fourth Amendment. For that reason, — - affirmance of this case would irresistibly lead to the con-. clusion that an officer’s right to search a man’s home is greater without a search warrant and without antecedent justification than it is with those protections. Resolutely, the foregoing conclusion, once reached, compels the further™:. _ conclusion that search’ warrants should not in any case be used. This conclusion is equivalent to repeal of the Fourth © ‘Amendment. No Court can a do that. en this case must be reversed. | : | If the inference of “manuevering” the place of arrest is validly reached, this, in ‘éffect, is using the arrest as a | pretext to search. For that reason alone. the ease should be reversed. As a third hil the failure of the officer to. antece- dently justify either the arrest or search is Treason, stand- " ing alone, for reversal under this Court’s cases. But since it will probably be argued by the respondent that the . officer in good faith believed, under procedure which had "obtained for at least 74 years in California, that no ante- - cedent justification was necessary, that point deserves ex- *68 Adv. Cal. at 454, ae 30 P a a amination. If the question before the Court was goodness or badness of the officer, this contention would be meaning- ful. But that is not the question before the Court. The clear purpose of the Fourth Amendment i is to protect: with a constitutional mantle the right of the people to privacy _ of their “persons, houses, papers and effects.” It matters. - not.that an officer in good faith may have thought this ; inapplicable, the right of privacy is as surely violated. “[No] Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation ...” The Constitution was not obeyed. ee 3 | But even the’claim. of good faith on the officer’s part mors rings a warning bell of grave doubt. He knew that no - factual statement would be required for an arrest warrant. He had no reluctance in the same case, on the same facts, to make an arrest without warrant. His statement that defendant’s home was chosen as the place of arrest so as _ “not to cause him any problem” at work is a pill that is hard to swallow as sworn truth. [R. T. 271] Out of con- . cern for.the defendant’s well-being, it is concluded that it. _ is more desirable to be carted off to jail before the eyes of a wife and young child after ransacking their house than from the presence of co-workers. Why was the officer so mule-like in his reluctance to admit to any connection with - the second search even though he was right there while it was. in progress? [R. T. 321-22] Finally, a word should be said as to prejudice. The respondent has- indicated its intention to argue that the error in this case, if any, was non-prejudicial beyond a rea- sonable doubt. The evidence which was seized in the search of September 13 filled two airline-type handbags. It com- prised hundreds of coins and medals, as well as numerous» 31. -other items. Some of these medals were positively identified by. Mrs. Pulati. The only-other tangible evidence intro- duced against’ defendant was a trade dollar which was not positively identified. [R: T..436] Mr. Shapiro,-the prose- cution’s witness, testified that there was A “reasonable pos- . sibility” that it was not the same trade dollar) Beyond that “reasonable possibility” the evidence upon \which defen- . dant was convicted was wholly circumstantial. It seems almost facetious on those facts to. suggest that a finding of “non-prejudicial, beyond a reasonable d6ubt”- could be considered. Chapman v. California, 386 U. S. 18 (1967). - Conclusion eS | on the foregoing arguments and authorities, peti- tioner respectfully requests that the judgment of the Su-. preme Court of the State of California be reversed and. the case remanded for a new trial. me * Kerrn'C. ‘Monnoz Attorney for Petitioner LE PES ERLE BE LI PSS TA EE SE OT AR aEY St a . ‘ CP Sree Te . , s TN --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0124%3A2. Public record. Not legal advice.