# Brief for the United States — United States v. Matlock

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1974
- **Citation:** 415 U.S. 164

## Text

No. 72-1855

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| Ocroses Tena, 1973

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an the Supreme Gout of the inited Soin
Uwerep STATES OF 5 Alia: pense Ye he

oN. WRIT OF oubtroranr TO. THR verre pana cover Eyes
OF APPEALS FOR THR SEVENTH OIROUIT
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i ‘BRIEF FOR THE — STATES
; es) ete fee, xe

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mi tp

Opinions below - -- - - --- -----------------------
Sarigtsetiow 45s. DCIS 22 2. 2 eset ce
Questions presented _---- ----------------------
Statement... .... 26 Je Vi. tc. + +2 +--+ eee
Summary of argument-.------------------------
Argument:

I. To establish the legality of the search it
sufficed for the government to show
that it reasonably appeared to the in-
vestigating officers that Mrs. Graff had
authority as a joint occupant to con-
sent to the search and that she did in
fact consent to it.........-.......0s0 11

II. The court of appeals applied an errone-
ous standard of proof in determining
that the United States had not shown
that Mrs. Graff had actual authority
to permit the search---.----.-------- 17
Ill. Even if, the courts below properly re-
quired the government to prove that
Mrs. Graff was in fact as well as ap-
pearance a joint occupant of the east
bedroom, they erred in holding inad-
missible the out-of-court statements
made by her and respondent indicating
joint occupancy - - ------------------ 21

onn- =

518-068—73-——-_1

suppression .
ing before the court sit- sed
22

. ting without a jury-----~
& B. The hearsay involved here

was reliable _ - - ------- 28

Conchasion.;. ...--------<=---5-58--"-9"--9- 30
Cases:

Anderson V United States, 399 F. 2d 753----- 13

Bridges v Wizxon, 326 U.S. 135... ---------- 25, 26

y. North Carolina, 391 U.S. 543- - --- 18

Chambers v. Mississtppt, 410 U.S. 284. -.----- 27, 29

Chimel v. California, 395 U.S: 752. - - ------- 18

Duke of Beaufort v. Crawshay, L.R. 1 C.P.

RE ee Ee mF _ cecyy cigs tia Spa 24
Elkins v. United States, 364 U.S. 206-------- 17
Frazier v. Cupp, 394 U.S. 731 -------------- 12
Gurleski v. United States, 405 F 2d 253, cer-

tiorari denied, 395 U.S. 981 - -.----------- 15
Hill v. California, 401 U.S. 797---------- 14, 15, 16
Knight v. Campbell (1848 nisi prius decision

by Chief Baron referred to in I

Taylor, Evidence, § 517, note 7 (9th ed.

1907))....-~-s~---3---+--------4+------
Lego v. T , 404 U.S. 477- -.----------- 18, 19
Linkletter v. Walker, 381 U.S. 618----------- 17
Mapp v. Ohio, 367 U.S. 643 ee eee 17
Morrissey V. Brewer, 408 U.S. 471----------- 25-26

Opp Cotton Mills v. Administrator, 312 U.S.

cee OA

Cases—Continued |
Roberts v. United States, 332 F. 2d 892, cer- —_
tiorari denied, 380 U.S. 980_--..-.-.------- 13
Schn v. Bustamonte, No. 71-732, de-
cided May 29, 1973.------------ 3, 12, 13, 17, 30
Stein v. United States, 166 F. 2d 851, certiorari
denied, 334 U.S. 844. ---.--------------- 13
Stoner v. California, 376 U.S. 483-..-------- 16
United States v. Airdo, 380 F. 2d 103, certiorari
denied, 389 U.S. 913. .------------------ 13
United States v. Aloway, 397 F. 2d 105------ 12
United States v. Johnson, 413 F. 2d 1396--- -- 12
United States v. Mackiewicz, 401 F. 2d 219,
certiorari denied, 393 U.S. 923-------.---- 12
United States v. Stone, 471 F. 2d 170, certiorari
denied, April 16, 1973 (No. 72-1042)------- 12, 13
United States v. Thompson, 421 F. 2d 373,
vacated on other grounds, 400 U.S. 17----- 12,13
Vale v. Louisiana, 399 U.S. 30_---.---------- 18
Walder v. United States, 347 U.S. 618- - - - --- 17

Constitution and statutes:
United States Constitution, Fourth Amend-

BRED. nnnncnadupnat'hash=—nb= 9, 13, 14, 15, 16
Pub. L. 93-12, 87 Stat. 9 (March 30, 1973)... 28
18 U.S.C. 2113. ..------------------------ 2
Miscellaneous:
Federal Rules of Evidence (Proposed) - - ---- - 11
Rule 104(a)....-...------------------ 28

Maguire and Epstein, Rules of Evidence in Pre-
liminary Controversies as to Admissibility, 36

Yale L. J..1101 (1927)..----------- 23, 24, 26, 27
McCormick, Evidence (1954):
§ 53__.....------------------5---- 23, 24, 25

Note, Applicability of Rules of Evidence Where
the Judge is the Trier of Facts in an Action at
Law, 42 Harv. L. Rev. 258 (1928). -------- 27

Iv

Miscellaneous—Continued
Phipson, Evidence, 28 (10th ed. 1963) .......-
1 Taylor, Evidence, § 517, note 7 (9th ed.
MOF) oe oe SPR GUERRA URI

z
3

1 Wigmore, Evidence, § 4 (3d ed. 1940) - . . .-- ,

5 Wigmore, Evidence, § 1385 (3d ed. 1940) - - -

S Wigmore, Evidence, § 2175 ff. (McNaughton
pues BOGE LU a Pom OR TLS TF ARG o2ek ,

1 Wisconsin Board of Cireuit.Judges, Wiscon-

sin Jury Instructions—Civil 200 (1972)... :

S$ 8 BBR & F

gu the Supreme Gourt of the Hnited States

OcroseR TERM, 1973

No. 72-1355

- Unrrep States oF AMERICA, PETITIONER
v.
Wituram Ear MATriock

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A,
pp. la-8a) is reported at 476 F. 2d 1083. The final
opinion and order of the district court (Pet. App. C,
pp. 10a-20a) are not reported. Two earlier opinions
of the district court which were superseded by its final
opinion (Pet. Apps. D and E, pp. 2la—32a) are not
reported.

| JURISDICTION

The judgment of the court of appeals (Pet. App. B,
p- 9a) was entered on February 5, 1973. On Febru-
ary 26, 1973, Mr. Justice Rehnquist extended the time
for filing a petition for a writ of certiorari to April 6,

(1)

2

1973, and the petition was filed on that date. The
petition was granted on May 29, 1973 (A. 40).' The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).
we SASS Nee b32 @ ; ‘ ‘a

1. Whether, to establish the validity of a warrantless
search consented to by a third party reasonably
appearing to have authority to consent to the search,
the government must prove that the consenting party
also had the actual authority to consent to the search.

2. Whether, in opposing a motion to suppress evi-
dence on the ground that the consent to the search
was not valid, the government must prove the suffi-
ciency of the consent “‘to a reasonable certainty.”

3. Whether the hearsay rule applies to the introduc-
tion of evidence at suppression hearings and, if so,
whether the out-of-court statements by respondent and
a woman that they were married were inadmissible to
show their joint occupancy of the bedroom which the
woman, authorized police officers to search.

STATEMENT .

Respondent was indicted for bank robbery (18 .
U.S.C. 2113) in the United States District Court for
the Western District of Wisconsin. He moved to sup-
press certain items, including $4,995 in cash, that had
been seized in the course of three searches of a house
in which he had rented a bedroom. The motion was
granted as to some of the items, including the $4,995,
and denied as to others (Pet. App. C, pp. 10a—20a).
On appeal by the United States, the court of appeals
affirmed (Pet. App. A, pp. la-8a). ;

*“A.” refers to the printed Appendix filed with the Clerk.

3 -

1. Gn the morning of November 12, 1970, respondent
was arrested by locdf police officers in the yard of a
house rented by Mr. and Mrs. Walter Marshall in
Pardeeville, Wisconsin (Pet. App. C, pp. 10a—Lla).
The residents of the house, at the time, were Mrs.
Marshall, her three children (including her daughter,
Mrs. Gayle Graff), Mrs. Graff’s three-year-old son,
and respondent (Pet. App. C, p. lla).

Immediately after respondent’s arrest, three local
police officers went to the door of the Marshall house
and were admitted by Mrs. Graff (Pet. App. C, p.
12a). The officers told her that they were looking for
money and a gun they believed to be hidden in the
house and they asked if they could make a search
(tbid.). Mrs. Graff consented (ibid.).” Mrs. Graff told

* The officers testified that Mrs. Graff was very cooperative
and that she said she had nothing to hide (A. 9, 12, 16). The offi-
cers did not specifically inform Mrs. Graff that she had the
right to withhold consent. The question whether investigating
officers are required, as a condition of a valid consent search, to
inform the consenting person of the right to withhold consent
was not considered by the courts below because they held the
search to be invalid on other grounds (Pet. App. C, p. 17a; cf.
Pet. App. A, p. 2a, n. 1). We note that this Court has since
held that failure by the officers so to inform the consenting per-
son does not per se invalidate the search, but is merely one
factor to be considered in determining whether, under all the
circumstances, the consent was voluntarily given. Schneckloth v.
Bustamonte, No. 71-732, decided May 29, 1973.

Mrs. Graff herself testified at the suppression hearing that she
never consented to any search of the premises (Transcript of
proceedings, April 5, 1971, pp. 91-92, 93-94). The district court
discredited this testimony (Pet. App. C, p. 12a). Mrs. Graff was
subsequently indicted for, and convicted of, perjury in her testi-
mony at the hearing. Imposition of sentence was suspended and
she was placed on probation for two years.

4

the officers that respondent “was sleeping in an up-
stairs bedroom which is also oceupied by her” (A. 15)
and that “she slept in the same bed” (A. 13, see also
A. 10 and A. 16). She specifically consented to their
searching that room (the “east bedroom”) (Pet. App.
C, p. 12a).*

At the time of the search there was a double bed
in the east bedroom with two pillows on it and the
bed presented the appearance of having been slept
in (Pet. App. C, p. 16a). There was men’s and
women’s clothing in the closet (ibid.). There was a
four-drawer dresser in the room, two drawers of
which contained men’s clothing and the other two of
which contained women’s clothing (tlid.). Mrs. Graff
told the officers, “Bill [respondent] has the two bot-
tom drawers and the two top drawers are mine”
(Pet. App. C, pp. 15a, 16a; A, 22-23).

In searching the bedroom, the officers discovered
and seized $4,995 in cash concealed in the closet (Pet.
App. A, p. 2a; Pet. App. C, p. 12a; A. 13-14). The
_ legality of that seizure is the only issue presented.‘

*None of the officers asked Mrs. Graff whether respondent
occupied the room as a guest or as a paying tenant, whether
she and respondent were married, or whether they had been
living together as husband and wife, and Mrs. Graff said
nothing to the officers on these subjects (Pet. App. C, p. 12a).

‘In addition to the cash, certain other items were discovered
and seized in the course of later searches of the east bedroom
and other parts of the house. The district court ordered some of
those items suppressed in addition to the money. For the rea-
sons explained in the petition (pp. 4-5, n. 2), we have not con-
tested in this Court the suppression of any item other than the
money.

3

2. Additional evidence was introduced: at the sup-
pression hearing tending to show that respondent and
Mrs. Graff were, in fact, joint oceupants of the east bed-
room. Respondent, Mrs. Graff and her child had been
living at the house since the preceding summer, when
they arrived together from Florida ; previously they had
lived together for five months in a one-bedroom apart-
ment in Florida (Pet. App. C, pp. 11a, 15a). Respondent
had agreed to pay the Marshalls $25 per week for room
and board (Pet. App. C, p. lla). He was current in
these payments, or nearly so, at the time of his arrest
(Pet. App. C, pp. 1la-12a).

After, but on the same day as, the search in question
Mrs. Graff told F.B.I. agents that she and respondent
had been sleeping together in the east bedroom regu-
larly, ineluding the early morning hours of that day
(Pet. App. C, p. 15a; A. 23-24, 26-27). She also told the
agents that, while she was not lawfully married to re-
spondent, “I consider myself a common-law wife” (A.
24. see also'A. 27).

Prior to respondent’s arrest, at various times and
places, and to various persons, both respondent and
Mrs. Graff had represented that they were married or
had made statements indicating that they were hus-
band and wife (Pet. App. C, p. 15a). In September,
1970, Mrs. Graff had introduced respondent to her
employer as her husband (A. 33-34) and respondent,
in a conversation with the wife of the employer (for
whom respondent was then also working), had _ re-
ferred to Mrs. Graff as his wife (A. 30-31). In the
same month Mrs. Marshall introduced respondent

518—068—73 2

6

to an acquaintance as “Gayle’s husband.’’ Respondent
did not deny it® (A. 37-38). Finally, Mrs. Graff’s
former husband testified that when he took some
papers to Mrs. Graff at the Marshall house, respondent
told him, ‘‘Leave her alone. She’s not your responsi-
bility, she is mine’”’ (Transcript of proceedings, June
22, 1971, pp. 59-60).

There was also additional testimony from neighbors
that on various occasions they had seen respondent
and Mrs. Graff openly going to, or coming from, the
east bedroom (Pet. App C, pp. 15a-16a).

3. The district court found that the circumstances
as they appeared to the officers just prior to their
search of. the east bedroom, including Mrs. Graff’s
statement to the officers that she and respondent occu-
pied the bedroom, reasonably indicated to the officers
that she was a joint occupant of the room; the court
therefore concluded that “just prior to the search, it
reasonably appeared to the searching officers that facts
existed which would render [Mrs.] Graff’s consent [to
the search of the bedroom] binding on [respondent ]”’
(Pet. App. C, p. 14a).

The court held, however, that where consent given
by a third person is relied upon as the justification
for a search, the government must show, not only that

5 A police officer testified that, the afternoon after the search,
Mrs. Marshall told F.B.I. agents that respondent and Mrs. Graff
were married “to the best of my knowledge. * * * But I don't
feel it was any of my business to really ask or pry * * *” (Trans-
cript of proceedings, April 5, 1971, pp. 120-121). However, at
the hearing, Mrs. Marshall testified that she did not think
respondent and Mrs. Graff were married, and had never told
anyone that they were (Supplemental transcript of proceedings,
April 5, 1971, p. 14). .

7

it reasonably appeared to the officers that the person
had authority to consent, but also that the person had
actual authority to permit the search.

In assessing whether the government had shown
that Mrs. Graff and respondent had in fact been joint
occupants of the bedroom, the court expressly disre-
garded, on the ground that they constituted inadmis-
sible hearsay, (1) Mrs. Graff’s statements to the local
officers at the time of the search acknowledging that
she and respondent jointly occupied the bedroom and
shared its dresser, and that the women’s clothing in

the dresser was hers (supra, pp. 3-4) (Pet. App. C, pp.
15a, 16a), (2) Mrs. Graff’s statement to the federal
agents after the search that she and respondent had
been regularly sleeping in the bedroom (supra, p. 5)
(Pet. App. C, p. 15a), and (3) the statements which
Mrs. Graff and respondent had both made, to persons
in the community prior to the search, indicating that
they were husband and wife (supra, pp. 5-6) (tbrd.).
The only evidence on the subject of joint occupancy
considered by the court was, therefore, the evidence
that Mrs. Graff and respondent had lived together for
five months in a one-bedroom Florida apartment just
prior to their taking up residence in the Marshall
home; their oceasional coming from and going to the
east bedroom; the slept-in appearance of the two-
pillow double bed at the time of the search; and the
presence of both men’s and women’s clothing in the
closet and dresser (Pet. App. C, pp. 15a, 16a).
Excluding what it considered inadmissible hearsay,
the court ruled that the government had failed to es-
tablish—to the requisite degree of certainty (see note

8

6, infra)—that' respondent and Mrs. Graff had in fact
jointly oceupied the east bedroom and concluded that
Mrs. Graff had not had actual authority to consent’ to
the search (Pet: App: C,' pp. 14a-16a). The court
therefore suppressed the evidence seized from the bed-
room (Pet. App. C, p. 19a).

~The court of appeals affirmed, holding that the
validity ' of the'search depended on proof of actual
authority to consent, not merely apparent authority
(Pet. App. A, pp. 4a-6a); that the government had
had. ‘the burden of proving: actual authority ‘‘to a
reasonable certainty, by the great weight of the cred-
ible evidence” (Pet. App. A, pp. 6a—7a);° and that
the extrajudicial statements of Mrs. Graff and re-
spondent had been properly excluded from the sup-
pression hearing as hearsay (Pet. App. ’A, p. 7a).

© The: district court, had. stated in its opinion that the burden
of proof borne by the government was proof “to a reasonable
certainty, by the greater weight of the credible evidence” (Pet.
App. C, pp: 10a, 16a ;'emphasis added). In its brief in the court
of appeals, a copy of which is being lodged herewith, the govern-
ment inadvertently misquoted the standard used by the district
court as requiring proof “to a reasonable certainty, by the great
weight of the credible evidence” (pp. 2, 18; emphasis added) and
the court-of appeals, in affirming the suppression order, approved
the formulation that had been misquoted in the government’s brief.
See note 12, infra.

SUMMARY OF ARGUMENT

The courts below properly recognized that either of
two persons, jointly occupying a room may validly
consent to a search of the area subject to their joint
control. It is undisputed that Mrs. Graff, with whose
consent the search here was conducted, told the investi-
gating officers just prior to the search, that she and
respondent jointly occupied the east bedroom, and that
it reasonably appeared to the officers from the totality
of the circumstances confronting them (including
Mrs. Graff’s statement) that such was the fact. It
reasonably appeared to the officers, in other words, as
the courts below properly conceded, that Mrs. Graff
had the authority to permit them to search the room.

The courts erred in, holding that to justify the
search the government was required to prove, in addi-
tion, that Mrs. Graff in fact had this authority—to
prove, in other words, that she was in fact a joint
occupant of the bedroom. The Fourth Amendment
prohibits only “unreasonable’’ searches and seizures.
The test is whether the police action is reasonable
when undertaken. Hence it was sufficient for Fourth
Amendment purposes that the investigating officers
here responded reasonably to the facts as they ap-
peared—in accepting as true the ev idently credible
statement by Mrs. Graff that she and respondent
shared the bedroom and in proceeding with confidence
that they, were validly authorizéd to search it. And,
as we show later, Mrs. Graft did th fact have the vight

4 oe pan 745) ¢
to ‘permit the search. : —
t#4i") artt** ; ;

10

To suppress evidence found in a search because the
police may have made a reasonable mistake as to the
authority of the consenting party to consent to the
search would frustrate legitimate law enforcement
without advancing the interests served by the exclu-
sionary rule. The purpose of the exclusionary rule is
to eliminate an incentive for lawless invasions of
privacy by the police. Application of the rule when it
is conceded that the officers acted en does not
further that objective.

II

If (notwithstanding our primary argument) the
government is required to prove actual cohabitation, the
court of appeals applied an erroneous standard of
proof, The standard the court applied was proof “to
a reasonable certainty, by the great weight of the
credible evidence.” The correct criterion is whether
there has been proof by a preponderance of the evi-
dence—a manifestly less stringent norm.

Ill

Even if the courts below were correct in requiring
the government to prove that Mrs. Graff was in fact as
well as appearance a joint occupant of the bedroom,
they erred in holding inadmissible the out-of-court
statements made by her and respondent indicating
that they were living together as husband and wife.

Reliable evidence, though technically within the
hearsay rule, may properly be considered by a court
sitting without a jury at a suppression hearing. Be-
cause they are ‘“‘the child of the jury system”

11

(Thayer), the technical common law rules of evidence
have no proper place at a hearing in which no jury
participates. As a consequence of his professional
training and detached judicial temperament, a judge
is expected to be able to make proper inferences from
reliable evidence that under strict hearsay rules might
be kept from a jury.

The validity of this submission is supported by the
fact that the proposed new Federal Rules of Evidence
specifically provide that in ruling on admissibility
questions the judge is not bound by the rules of evi-
dence (except those relating to privileges).

Mrs. Graff’s out-of-court statements were reliable.
They were candid, matter-of-fact, and, if not “against
interest”’ in any legally recognized sense, at all events
in no sense self-serving. In addition to being consistent
with one another, furthermore, they were corroborated
by the related evidence which the courts below con-
ceded was admissible. There is, in short, no conceiv-
able reason for not crediting them.

ARGUMENT
I

TO ESTABLISH THE LEGALITY OF THE SEARCH IT SUFFICED
FOR THE GOVERNMENT TO SHOW THAT IT REASONABLY
APPEARED TO THE INVESTIGATING OFFICERS THAT MRS.
GRAFF HAD AUTHORITY AS A JOINT OCCUPANT TO CON-
SENT TO THE SEARCH AND THAT SHE DID IN FACT
CONSENT TO IT.

The court below did not question the strong evi-
dence that Mrs. Graff, who said she shared a room
with the respondent, voluntarily consented to the

12

search made by the police, see pp.3—4, supra. The court,
moreover, positively, found ‘‘that facts. existed * * *
from which the officers could reasonably believe that
* * * Graff * * * had authority to consent to a search
and that [her consent] * * * would be binding upon
the defendant” ‘ (Pet. App. A, pp. 2a-3a). But the court
ruled that the government must prove that Mrs. Graff
did sn fact have “authority to bind defendant” for the
evidence seized to be admissible (Pet. App. A, pp. Ga-
7a) and that the government had failed in that proof
(ibid.) . This holding is erroneous. The requirement that
the government prove the actual authority of a per-
son whe reasonably appears to have authority to con-
sent to a search, and does consent, places a restriction
on. consent searches not required by the Fourth
Amendment or the reasons for the exclusionary rule—
and excludes probative and often definitive evidence
that should be available to the courts.

It is settled that any of several persons sharing the use of a
room, automobile, or even a duffel bag, may validly consent to
a search of it. See, e.g., Frazier v. Cupp, 394 U.S. 731, 740;
Schneckloth v. Bustamonte, sepra, slip op. at p. 27. See also
United States v. Stone, 471 F.2d 170, 173 (C.A. 7), certiorari
denied, April 16, 1973 (No. 72-1042); United States v. Thomp-
son, 421 F. 2d 373, 375-377 (C.A. 5), vacated on other grounds,
400 U.S. 17; United States v. Johnson, 413 F. 2d 1396, 1400
(C.A. 5); United States v. Mackiewicz, 401 F. 2d 219, 223-224
(C.A. 2), certiorari denied, 393 U.S. 923; United States v.
Alloway, 897 F. 2d 105, 108-110 (C.A. 6).

Both. courts below appear mistakenly to have assumed that
the reason the seized evidence is admissible against the absent

13

1. In Schneckloth v. Bustamonte, No. 71-732, de-
cided May 29, 1973, this Court made clear that nothing
in the policy of the Fourth Amendment is designed
to discourage citizens from consenting to searches to
aid in the apprehension of criminals. “Rather,” the
Court said, ‘‘the community has a real interest in en-
couraging consent, for the resulting search may yield
necessary evidence for the solution and prosecution of
crime, evidence that may insure that a wholly inno-
cent person is not wrongly charged with a criminal
offense.” Slip op. at p. 25. “And, unlike those constitu-
tional guarantees that protect a defendant at trial, it
cannot be said every reasonable presumptién ought to

occupant is that the consenting occupant waives the absent oc-
cupant’s Fourth Amendment rights (Pet. App. A, pp. 5a, 6a;
Pet. App. C, pp, 14a, 16a, 18a; Pet. App. E, pp. 29a-30a). This
notion, though occasionally encountered in the decisions relating
to co-occupant consent searches (e.g., Anderson v. United States,
399 F. 2d 753, 756-757 (C.A. 10)), is unsound. A more accurate
analysis is that the consenter has the right to allow the police
to search the premises he occupies and that whatever evidence
is found in that search is evidence found in a lawful search,
admissible against all persons, including the co-occupant. No
question of delegated authority to waive the absent occupant’s
constitutional rights is involved. As noted in Roberts v. United
States, 332 F. 2d 892, 896-897 (C.A. 8), certiorari denied, 380
U.S. 980:

“It is not a question of agency, for a wife should not be held
to have authority to waive her husband’s constitutional rights.
This is a question of the wife’s own rights to authorize entry
into premises where she lives and of which had control.”
See also, United States v. Stone, supra, 471 F. 2d ‘at 173;
United States v. Thompson, supra, 421 F. 2d at 376; United
States v. Airdo, 380 F. 2d 103, 106-107 (C.A. 7), certiorari
denied, 389 U.S. 913; Stein v. United States, 166 F. 2d 851, 855
(C.A. 9), certiorari denied, 334 U.S. 844.

518-068—73—_8

; 14
be indulged against voluntary relinquishment” (ébid.).
As the Fourth Amendment prohibits only unreasonable
searches, and as the exclusionary rule is designed to
help enforce that mandate, the question should be
whether it was unreasonable for the police to make
the search they made in this case and whether any
Fourth Amendment interest ae be ‘served in’ ex-
eluding the evidence.

In conducting an investigation, police officers must
act on the basis of the facts as they appear at the
time. What the Fourth Amendment requires is that
their action be reasonable at the time it is undertaken.
One aspect of the rule is that an entry made without
probable cause cannot be validated by what the search
later turns up. But the reverse of the proposition is
equally sound: a subsequent discovery that the officers
were misled by deceiving appearances does not change
the fact that their action was reasonable.‘ This Court
expressly so recognized in Hill v. California, 401 U.S.
797. In that case the Court sustained the legality of a
search of the defendant's apartment, without a war-
rant or the defendant’s consent, incident to the arrest
of a man who answered the door and whom the police
reasonably but wrongly believed to be the defendant.
In upholding the admissibility of evidence found in
the apartment the Court noted, ‘‘sufficient probability,
not certainty, is the touchstone of reasonableness
under the Fourth Amendment and on the record be-
fore us the officers’ mistake was understandable and

* Here, however, the officers were not misled. Mrs. Graff
Se
thorized them to search.

15

the arrest a reasonable response to the situation facing
them at the time’’ (401 U.S. at 804), Similarly, in the
only: ‘ease we have been able to find involving, like
this 'one,.a factual dispute over the consenting per-
son’s authority with respect to the searched premises,
the California Supreme Court concluded (People v.
Gorg; 45 Cal. 2d. 776, 783):
{Wyjhen as in this case the officers. have acted
in good faith with the consent and at the re-
quest of a home owner in conducting a
search, evidence so obtained cannot be excluded
merely because the officers may have made a
reasonable mistake as to the extent of the
owner’s authority.
See, also, Gurleski v. United States, 405 F. 2d 253,
261 (C.A. 5), certiorari denied, 395 U.S. 981; People
v. Hopper, 268 Cal App. 2d 774, 779.

The reasoning of these cases applies here. It was
sufficient for Fourth Amendment purposes that the
investigating officers responded reasonably to the facts
as they appeared—in accepting as true the evidently
credible statement by Mrs. Graff that she and re-
‘spondent shared the east bedroom, and in accepting her
consent to search as valid.°

* We are not arguing that the searching officer’s mere “good
faith” is sufficient; his belief must be reasonable. Nor do we sug-
gest that in every circumstance the inquiry ends after probing
the searching officer’s state of mind: his good faith belief that
he has a valid warrant will not cure a defect in the underlying
affidavit. But where, as here, there is no suggestion of prior official
misconduct or unreasonable action, it is, we submit, wholly appro-
priate to test the propriety of the searching officer’s conduct by
viewing the situation as itf appeared to him at the time.

Dae led Selesgemdhe Npteatint denned ahineaine

16

Stoner v. California, 376 U.S. 483, relied on by the
court of appeals (Pet. App. A, p. 5a) and by respond-
ent (Resp. to Pet., p. 10), is not to the contrary.
There, #e Court held that as a matter of law a hotel
desk clerk, unless authorized by the occupant of the —
room, cannot consent to a search of a guest’s room.
Since the officers knew that the consenting person was
the clerk and that he was not authorized by the occu-
pant, no question of consent to a search by one rea-
sonably believed to be an occupant was involved. The
Court’s statement that Fou endment rights ‘‘are
not to be eroded * * * unrealistic doctrines of
‘apparent authority’’’ (376 U.S. at 488) must be
read in light of the entirely distinguishable fact-
situation there presented. The comment has no rele-
vance to this case, where the officers justifiably be-
lieved that the person authorizing the search was an
occupant of the premises, because an occupant clearly
has the authority to permit a search, see note 7, supra.

2. Even if it were held that it is not enough for the
police reasonably to believe that they had consent to
search, when the person giving consent is without
actual authority, it does not mechanically follow that
the exclusionary rule should apply. The application of

who consents to the search of premises and argue that this
possibility requires the exclusion of evidence obtained in a
search if the consenter does not in fact have the authority the
police reasonably believed him to have. (Pet. App. A, p. 4a;
Pet. App. C, p. 16a.) Nothing like the posed hypothetical situa-
tion is involved in this case and the resolution of that question
should properly await a case involving those facts. However,
Hill v. California, 401 U.S. 797, 804, strongly supports the
proposition that the reasonable appearance at the time of the
search, and not the later discovery as to identity, would govern.

17

that rule is based on the practical consideration of
preventing unlawful police searches. Mapp v. Ohio,
367 U.S. 643, 656; Elkins v. United States, 364 U.S.
206, 217. In considering the question of the retro-
activity of the exclusionary rule, where the deterrent
effect of the rule could have little play, the Court held
the rule inapplicable. Linkletter y. Walker, 381 U.S.
618, 629, The Court has also refused to apply the rule
Where illegally obtained evidence was used only for
impeachment of a witness. Walder v. United States,
347 U.S. 62. See discussion in the conculTing opinion
of Justice Powell in Schneckloth, supra, slip op. at pp.
18-22. In the present case, the courts below have spe-
cifically found that the police reasonably believed that
they had received a valid consent to search from a
person who had the authority. to give that consent
(see pp. 6, 11-12, supra). It is difficult to see how, as a
practical matter, an exclusion of the evidence obtained
in. a case such as this would prevent police unlawfulness,
for the police reasonably believed that they were act-
ing lawfully, and presumably would so believe in a
future case,

II

THE COURT OF APPEALS APPLIED AN ERRONEOUS STANDARD
OF PROOF IN DETERMINING THAT THE UNITED STATES
HAD NOT SHOWN THAT MRS. GRAFF HAD ACTUAL AU-
THORITY TO PERMIT THE SEARCH.

1, It is undisputed that the government proved that
Mrs. Graff had reasonably appeared to the officers to
be a ¢o-ocewpant. Hence the question of the appropri-
ate standard of proof need not be reached if the Court

18

accepts our principal contention—that it was the situ-
ation as it reasonably appeared to the officers that
controlled the validity of the search. The district court,
however, required proof at the suppression hearing
that Mrs. Graff was in fact a co-habitant of the room.
The test by which the district court appraised the
sufficiency of the government’s evidence on that point
was by inquiring whether it had been proved ‘‘to a
reasonable certainty, by the greater weight of the
credible evidence” (Pet. App. @,, pp. 10a, 16a ; emphasis
added). The court of appeals, on the mistaken assump-
tion that the standard applied by the district court had
been whether Mrs. Graff’s joint occupancy had been
proved “to a reasonable certainty, by the great weight
of the credible evidence” (emphasis added), approved
the latter standard (Pet. App. A, pp. 6a—-7a)." We sub-
mit that standard was erroneous."

The proper criterion of the sufficiency of the proof
as to an issue of fact in a preliminary hearing on the
admissibility of evidence is whether there has been
proof by a preponderance of the evidence. Lego v.
Twomey, 404 U.S. 477. In Lego, this Court rejected a
contention that the voluntariness of a confession of-
fered by the government must be proved beyond a
reasonable doubt. The Court said (404 U.S. at 488 ; foot-
note omitted) :

1° See note 6, supra, p. 8, for the circumstances that had caused
the court of appeals to assume that the standard applied by the
district court had been the one mentioned.

"We concede that the burden was on the government to prove
the warrantless search valid. See Vale v. Louisiana, 399 U.S. 30,
34; Chimel vy. California, 395 U.S. 752, 761; Bumper v. North
Carolina, 391 U.S. 543, 548.

ANE ttn citi

19

[W Je are unconvinced that merely emphasizing
the importance of the values served by exclu-
sionary rules is itself sufficient demonstration
that the Constitution also requires admissibility
to be proved beyond reasonable doubt. Evidence
obtained in violation of the Fourth Amendment
has been excluded from federal criminal trials
for many years. Weeks v. United States, supra.
The same is true of coerced confessions offered
in either federal or state trials. Bram v. United
States, 168 U. S. 532 (1897) ; Brown v. Missis-
sippt, supra. But, from our experience over this
period of time no substantial evidence has accu-
mulated that federal rights have suffered from
determining admissibility by a preponderance
of the evidence. * * * Without good cause, we
are unwilling to expand currently applicable
exclusionary rules * * *,
Thus the court of appeals clearly erred in applying
the strict standard it did to the government’s effort to
show that the challenged evidence had been lawfully
seized.”

'* The government, in reliance on Lego, had urged in its brief
in the court of appeals that the preponderance standard was
the correct one and had asked the court to remand the case to
the district court with directions to reconsider, in the light of
that standard, its finding that the government had not ade-
quately proved Mrs. Graff's actual authority to authorize search

8), that the standard applied by the court had been
proof “to a reasonable certainty, by the great weight of the
credible evidence” (emphasis added). That was, of

20

2. Notwithstanding that the court of appeals’ error
was based on a mistaken assumption as to the stand-
ard applied by the district court, and assuming (as we
do for present purposes) that the trial court’s state-
ment. of the standard was essentially correct (see note
12, supra), the error was nevertheless prejudicial. If
either court had truly employed the correct. standard
(preponderance) in viewing the government’s evi-
dence that Mrs. Graff was in fact a joint eecupant of
the bedroom, it would have, we submit, concluded that
the government’s evidence met, or more than met, the
test. Certainly, the court of appeals may have con-
curred in the district court’s conclusion that the evi-
dence fell short only because it assumed that more
than a. preponderance of the evidence was required to
prove that Mrs. Graff actually oeeupied the room.

It follows, we suggest, that if the Court reaches the
present, issue, remand of the case to the court of ap-
peals would be appropriate to enable that court to re-
consider, in light of the proper standard of proof, the
question whether the government sufficiently -preved
that Mrs. Graff was a joint oeenpant of the bedroom.
This submission is independent of the related question,

standard actually employed by the district court—which it
phrased proof “to a reasonable certainty, by the greater weight
of the credible evidence” (emphasis added) —differs meaning-
fully from the correct standard (preponderance) is less clear.
Cf. the Jury Instructions Committee's, “Comment” accompany-
ing 1 Wisconsin. Board of Circuit, Judges, Wisconsin Jury In-
—Civil 200,-(1972). (the: source of: the standard ap-
ied by. the district court, See-nete-G;-erpea,p8) : “The com-
mittee feels that greater. weight, is an, exact synonym for fair
preponderance, and much more understandable to, the average
juror” {emphasis in original). sad

21 a

discussed next of whether evidence presented by the
government on that issue was improperly disregarded
as hearsay.

IIT

EVEN IF THE COURTS BELOW PROPERLY REQUIRED THE
GOVERNMENT TO PROVE THAT MRS. GRAFF WAS IN FACT
AS WELL AS APPEARANCE A JOINT OCCUPANT OF THE
EAST BEDROOM, THEY ERRED IN HOLDING INADMISSIBLE
THE OUT-OF-COURT STATEMENTS MADE BY HER AND
RESPONDENT INDICATING JOINT OCCUPANCY.

We assume in this Point, arguexdo, as we did-in
Point II, that the government was required to show
that Mrs. Graff was in fact as well as appearance a
joint occupant of the east bedreom in order to prove
the search valid. If the Court accepts our principal
contention—that it was enough that it had reason-
ably appeared to the officers that Mrs. Graff was a
¢Co-occupant—it will have no occasion to consider the
present issue.

The excluded statements consisted of (1) Mrs.
Graff's statements to the investigating officers at the
time of the search that she and respondent jointly
occupied the bedroom and shared its dresser and that
the women’s clothing in the dresser was hers; (2)
her statement to the federal agents following (but on
the same day as) the search that she and respondent
had been sleeping together in the bedroom regularly,
including the early morning hours of that day ;** and

** For the purpose of determining Mrs. Graff's actual author-
ity to consent to the search, there is of course no objection to
looking to evidence unavailable to the officers when they first

22

(3) the statements by both Mrs. Graff and respondent,
made to persons in the community prior to the search,
that they were husband and wife. Supra, p. 7. These
statements were concededly hearsay, and none is read-
ily classifiable under any of the standard exceptions
to the hearsay rule. Nonetheless, we will argue that,
as reliable hearsay, they are admissible at a suppres-
sion hearing before a district judge sitting without a
jury.

A. Reliable hearsay may properly be considered in a suppres-

sion hearing before the court sitting without a jury.

The pretrial suppression hearing was held before a
district judge sitting without a jury. The purpose of
the hearing was to determine whether the money
found in the closet of the east bedroom was admissi-
ble at respondent’s upcoming trial for bank robbery.
The admissibility of that evidence at the bank robbery
trial depended on whether Mrs. Graff, who authorized
the search of the room, had authority to do so; and
that, in turn, depended on whether Mrs. Graff was a
joint occupant of the room with respondent. Mrs.
Graff made several acknowledgments to the searching
officers, and later to F.B.I. agents, that she was a
joint occupant of the room: both Mrs. Graff and re-
spondent also made statements in the community that

entered. Indeed, both courts below properly considered, on this
issue, the physical appearance of the searched room. It would
be otherwise if (as we primarily contend) the correct test is
whether the officers reasonably believed Mrs. Grafff had
authority to consent to the search; in that event, only what was
known to the officers before they undertook the search would
be relevant.

23

they were husband and wife. The district judge ex-
cluded these statements from consideration at. the
suppression hearing, on the ground that they consti-
tuted inadmissible hearsay. We contend that the
judge erred in so doing—for the reason that the tech-
nical common law rules of evidence do not apply at
such a juryless proceeding, :

1. Wigmore declaresy “In preliminary rulings by a
judge on the admissibility of evidence, the ordinary
rules of evidence do not apply.” 5 Wigmore, Evidence,
§ 1385 (3d ed. 1940); emphasis in original. Wig-
more states this principle without citation of sup-
porting case law. The only supporting allusion is a
reference to an earlier portion of his treatise in which
he argues that the ordinary rules of evidence are not
generally regarded as applicable at ex parte, inter-
locutory, extradition, or disbarment proceedings be-
fore the court because “there is no jury [in such
proceedings], and the rules of Evidence are, as rules,
traditionally associated with a trial by jury.” 1 Wig-
more, Evidence, § 4 (3d ed. 1940).

The pertinent historical case law on the applica-
bility of the rules of evidence to preliminary hearings
on admissibility of evidence is, as McCormick notes,
“seattered and inconclusive.” McCormick, Evidence
§53, pp. 123-124, n. 8 (1954).* MeCormick observes

** Substantially the same conclusion was reached in an earlier
and more exhaustive study, in which the early English and
more recent American authorities were examined in some detail.
Maguire-and Epstein, Rules of Evidence in Preliminary. Con-
troversies as to Admissibility, 36 Yale L.J. 1101. (1927). As
regards the English case authorities, the study concluded that
Phipson, the English commentator on the law of evidence, had

24

that the Amerfean authorities “suggest that the judges
trial and appellate give primacy hére to habit rather
than to practical adaptation to the situation, and tend
to require the observance of jury-trial rules of evi-
dence [at such hearings].” MeCormick, supra, p. 124,
n. 8. .

But if Wigmore’s statement is too categorical from
a historical viewpoint, it is unéxceptionable as a state-
ment of principle. As “the child of the jury system”
(Thayer, A Preliminary Treatise on Evidence at the
Common Law 266 (1898)), the technical common law
rules of evidence have no proper place at a hearing
in which no jury has a role. “[O]ur law of evidence,”
Thayer noted, *‘is a piece of illogical, but by no means
irrational, patchwork; not at all to be admired, nor |
easily to be found intelligible, except as a product of
the jury system, as the outcome of a quantity of
rulings by sagacious lawyers, while settling practical
questions, in presiding over courts where ordinary,
untrained citizens’ are acting as judges of fact.’’
Td. at p. 509.

Since the purpose of rules of evidence is to seek
to prevent “ordinary, untrained citizens’’ from mak-

summed up the situation more accurately than Wigmore when
he noted, more cautiously, that. “the better opinion is” that such
sdinisatbilits hearings are not subject to the strict rules of evi-
dence. Maguire and Epstein, supra, 36 Yale L.J. at 1101, 1111--
1112: Cf: Phipson, Evidence, para. 24, p. 16 (10th ed. 1963).
Phipson cites in this connection Knight v. Campbell (an 1848
nist prius decision by Chief Baron Pollock, the only reference
to which in print occurs in 1 Taylor, Evidence, $517, rote 7
(9th ed. 1897)) and Duke of Beaufort v. Crawshay, LR. 1
C.P. 699 (1866). The decisions referred to are discussed in
Maguire ‘and Epstein, supra, 36 Yrle_LJ. at 1110-2111.

25

ing unwarranted inferences from otherwise probative
material,” it is evident that the reason for the rules
ceases when a judge alone is deciding the issue. As a
consequence of professional training and detached
judicial temperament, a judge is expected to be on the
alert against the kind of unwarranted inference-
making which the evidence rules are designed to
prevent. MeCormick is right, therefore, when he
states:
Should the exclusionary law of evidence, “the
- child of the jury system” in Thayer’s phrase, be
applied to this hearing before the judge? Sound
sense backs the view that it should not, and that
the judge should be empowered to hear any
relevant evidence, such as affidavits or other
reliable hearsay.
Op. cit. supra, pp. 123-124, n. 8.

This Court has noted that, absent an express statu-
tory requirement to the contrary, “‘it has long been
settled that the technical rules for the exclusion of
evidence applicable in jury trials do not apply to pro-
ceedings before federal administrative agencies * * *,”
Opp Cotton Mills y. Administrator, 312 U.S. 126, 155
and cases cited." Cf. Morrissey v. Brewer, 408 US.

* The rules of evidence “operate to exclude relevant evi-
dence.” McCormick, supra, § 53. “And chiefly, it [the law of
evidence] determines, as among probative matters, * * * what
classes of things shall not be received. This excluding function
is the characteristic one in our law of evidence”, (emphasis
added) (Thayer, supra, at p. 264).

** Bridges v. Wizon, 326 U.S, 135, 153-154, cited by the court
of appeals (Pet. App. A, p. 7a), is not. to the contrary. There,
as this Court noted, the hearsay statements the introduction of
which was held to have rendered the deportation proceeding
unfair were admitted in violation of regulations of the Immi-

471, 489 (evidence rules not applicable to parole revo-
cation hearings). No more, it is submitted, should they
apply to juryless eourt proceedings.

2..We do not suggest, of course, that none of the
rules of evidence should apply at such proceedings.
Certain of the rules—those involving privileges of
various kinds are examples—are based on reasons of
policy that have no relation to the objective of guard-
ing untrained laymen against the dangers of errone-
ous factfinding. Cf. 8 Wigmore, Evidence, § 2175 ff.
(MeNaughton rev. 1961).'Manifestly there is no rea-
son to relax the rules of that type merely because no
jury is present." But we do suggest that reliable hear-

gration gration and N aturalization Service (326 U.S. at 150-153). More-
over, the Court in Beidges. treating the deportation proceeding
as in substance a criminal ¢riel, and noting that defendants
cannot be conricted on the basis of hearsay, that it
would be equally inappropriate to permit deportati such
evidence (326 U.S, at 153-154). That aspect of the Bridges
rationale is, of course, inapposite here, since there is no question
here of the admissibility of hearsay at petitioner's trial—but
only of its admissibility at a pretrial hearing concerning the
admissibility at trial of other evidence.

*See Maguire and Epstein, supra, 36 Yale L. J. at 1101-
1102:

“None of the quotations above [quotations from Wigmore and
other commentators favoring the non-applicability of the ordi-
nary rules of evidence to juryless admissibility hearings] should
be taken to mean that every rule of evidence goes by the board
in these preliminary judicial inquiries. The mere shift from
ultimate to introductory questions and from jury to judge fur-
nishes no cause for discarding such doctrines as the marital

privileges and incompetencies, the privilege against self-incrimi-
nation, the privilege protecting state secrets, or the lawyer-client
privilege. All these doctrines are supposed to guard interests
which would suffer as greatly from forced public revelations to

> es

- mnissibility of evidence at the trial proper.

27
Say, even if it falls within no standard exception to
the hearsay rule, should be admissible in non-jury
suppression hearings, to be accorded such weight as,
in the cireumstances, it merits. Cf. Chambers v. Missis-
sippt, 410 U.S. 284." In other words, we contend it
was error for the courts below to hold the out-of-court
statements involved here to be inadmissible simply
because they involved hearsay." That the excluded
statement were reliable is shown infra (pp. 28-29).

3. That the rule we urge is sound is attested, finally,
by the fact that its substance is incorporated in one of

a judge as from like revelations to a jury, But this shift does
furnish good cause for taking unconventional short cuts through
the hearsay rule and other doctrines intended wholly or princi-
pally to guard against erroneous findings of fact in the very
trial.” (Emphasis in original; footnotes omitted.)

“In Chambers this Court held that it was a denial of due
process in the circumstances of that case to exclude reliable
hearsay offered by the defendant at a criminal trial (confessions
by one not on trial, made under circumstances suggesting they
were trustworthy, to the offense charged). If to exclude trust-
worthy hearsay from consideration by the jury can in some in-
stances be not only erroneous but fatally so, it would appear to
follow a fortiori that trustworthy hearsay should be admissible
in the court’s discretion at a hearing in which no jury partici-
pates,

** Whether any relaxation of the evidence rules in general (or
of the hearsay rule in particular) may, or should, be permitted
where the court sits as the trier of the ultimate facts (as at a
jury-waived trial) need not be considered in this case. Cf. Note,
Applicability of Rules of Evidence Where the Judge is the
Trier of Facts in an Action at Law, 42 Warv. L. Rev. 258
(1928). Our contention as to the permissibility of such relaxa-
tion is limited to pretrial and intra-trial hearings as to the ad-

28

the‘ proposed new Federal Rules of Evidence.” Rule
104(a) specifically provides in relevant part:
"Preliminary questions concerning * * * the
admissibility of evidence shall be determined by
the judge * * *. In making his determination
he is not bound by the rules of evidence except
_ those with respect to privileges.
Thus this Court, in proposing these Rules to Congress,
has endorsed the substance of the precise contention
the government here makes.”

B. The hearsay involved here was reliable.

That Mrs. Graff's out-of-court acknowledgements
were reliable is apparent from the circumstances in
which they were made.” The statements were candid,

* The Rules were originally scheduled to have become effec-
tive on July 1, 1973. Under Pub. L, 93-12, 87 Stat. 9, signed by
the President on March 30, 1973, the effectiveness of the rules is
indefinitely suspended until further affirmative action by

\

* That the Court’s endorsement is in the form of a proposed -
statute-type Rule, to take effect in the future, is no obstacle tg
the Court's adoption of the substance of the Rule as the app
priate rule for decision of this case. The legal precedents in
the field are scattered and inconclusive, as noted earlier, and
the proposed new Rule is merely the sanctioning, with proposed
statutory force, of a procedure whose justification is rooted in

* Neither court below suggested that they were unreliable.
Nor has respondent done so at any stage of the proceedings.
All have taken the position that the statements were inadmis-
sible simply because they were technically hearsay.

matter-of-fact, and, if-not:“against interest” in any
‘usual or legally recognized sense, at all events in no
sense self-serving. When in response to the investigat-
ing officers’ inquiries Mrs. Graff stated that she occu-
pied the east bedroom with respondent (a man to
whom she was not married and whom she had just
observed being arrested, see A. 19), there is, it is sub-

mitted, no rational basis for viewing the statement as
other than the truth. The same is true of her acknowl-

edgements a moment later—after she had led the offi-
cers to the bedroom and consented to its search—that
she and respondent shared the room’s dresser and that
the women’s clothing in it was hers. Her statements to
the F.B.I. agents later the same day, acknowledging
that she and respondent had been sleeping together
regularly in the bedroom, were similarly and equally
trugtworthy. The acknowledgements, moreover, being
consistent as well as candid, were corroborative of
one another. Cf. Chambers v. Mississippi, supra, 410
U.S. at 300. In addition, all were corroborated by the
statements which Mrs. Graff and respondent had both
made to persons in the community, prior to the search,
indicating that they were husband and wife (supra,
pp. 5-6)—as well as by the evidence (non-declaratory in
character) which the district court did consider in
finding that the couple had cohabited at least “at
times” in the bedroom (Pet. App. C, pp. 15a-16a; see
supra, pp. 4-6). The excluded statements, in short, .
were made in such circumstances as to provide unusu-
ally strong assurances of reliability.

30 :

For the reasons stated, it is respectfully submitted
that the judgment of the court of appeals should be
reversed.”

Rosert H. Bork, |
. Solicitor General.
Henry E. Perersen,
Assistant Attorney General.
Harry R. Sacuse,
ALAN A. TUTTLE,
Assistants to the Solicitor General.
Pir R. MonaHan,

Attorney.
Aveust 1973.

** If the Court should sustain the government's principal con-
tention (Point I, supra, pp. 11-17), the suppression order should
be ordered vacated insofar as it pertains to the seized $4,995
(the only item whose suppression is here challenged) and the
case remanded to the district court for consideration of the
question—not previously reached by it—whether the search was
valid in the absence of advice to Mrs. Graff by the investigating
officers that she was not obliged to consent to it (see Pet. App.
C, p. 17a; note 2, supra). In making that determination, the
court would of course be bound by this Court’s holding in
Schneckloth v. Bustamonte, No. 71-732, decided May 29, 1973.
If the Court should reverse on the ground that the court below
applied an erroneous standard of proof, remand to that court—
for reconsideration, in light of the proper standard of proof,
of whether the government had sufficiently proved that Mrs.
Graff was a joint occupant of the bedroom—would be appro-
priate, If the reversal were based on the ground of erro-
neous exclusion of the out-of-court statements of Mrs. Graff and

remand to the district court, for reappraisal of the
sufficiency of the proof of joint occupancy in light of that evi-
dence, would be indicated.

U.S. GOVERNMENT PRINTING OFFICE: 1973

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0239%3A3. Public record. Not legal advice.