Lankford v. Schmidt Transcript of Proceedings Vol. 9
Public Court Documents
April 1, 1965

Cite this item
-
Brief Collection, LDF Court Filings. Lankford v. Schmidt Transcript of Proceedings Vol. 9, 1965. 0969a860-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1ff90f86-6f57-402f-b499-a43368560198/lankford-v-schmidt-transcript-of-proceedings-vol-9. Accessed April 29, 2025.
Copied!
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SAMUEL JAMES LANKFORD, et al. : « vs. : Civil No. 16030 BERNARD J, SCHMIDT, ^ c o m m i s s i o n e r of Police of Baltimore City. : April 1, 1965 TRANSCRIPT OF PROCEEDINGS Volume 9 (Page 1009 to page 1139 ) Francis T. Owens Official Reporter 514 Post Office Bldg. Baltimore 2, Maryland 1009 I N D E X ARGUMENT OF MR. NABR1T Page 1018 ARGUMENT OF MR. MURPHY Page 1051 STATEMENT OF MR. MARBURY Page 1071 STATEMENT OF MR. ENEY Page 1096 ARGUMENT OF MR. HUGHES Page 1106 CLOSING ARGUMENT OF MR. SAUSE Page 1117 CLOSING ARGUMENT OF MR. NABRIT Page 1121 1 •> 2 4 5 <; 7 S !) 10 11 12 18 14 15 10 17 1.8 1!> 20 21 22 22 24 25 1010 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SAMUEL JAMES LANKFORD, et al. vs. Civil No. 16080 BERNARD J. SCHMIDT, as COMMISSIONER of POLICE of BALTIMORE CITY Baltimore, Maryland Thursday, April 1, 1965 The above-entitled matter was resumed for hearing before His Honor, Roszel C. Thomsen, Chief Judge, at ten o'clock a.m. A P P E A R A N C E S For the Plaintiffs: MRS. JUANITA JACKSON MITCHELL MR. TUCKER R. DEARING MR. JAMES M. NABRIT, III MR. W. A. C. HUGHES, JR. MR. MELVYN ZARR For the Defendant: MR. JOHN W. SAUSE, JR., Assistant Attorney General, State of Maryland MR. ROBERT C. MURPHY, Assistant Attorney General, State of Maryland MR. WILLIAM L. MARBURY, Amicus Curiae MR. H. VERNON ENEY, Amicus Curiae 1011 PROCEEDINGS THE COURT: Mrs. Zielinski, our court clerk, is in the hospital, and from a check of the exhibits it does not appear that the Masters’ report has gotten formally onto the docket. I will ask counsel for the defendants today if they agree that the Masters' report may be considered as having been filed. I think tnat is the only thing. MR. MURPHY: That's agreed to, Your Honor. THE COURT: How long will you be? MR. NABRIT: Well, I'll try to keep it pretty short, something less than half-an-hour, but it's up to the Court. THE COURT: Well, I want you to argue fully. I think to some extent the briefs didn't exactly answer each other, and I want to know what answers you have. I read your briefs, and I have your briefs here, of course, and I want you to summarize or say whatever you want in your argument in chief. I also will want to know what reply you have to the State's arguments, and I think that you may perhaps want to devote a substantial part of your time to rebuttal after. MR. NABRIT: Yes. Of answering the State, and bothTHE COURT: 1 •) :{ 4 ■■.”) (i 7 S !* 10 11 12 1,4 14 lf> Ki 17 IS 1!) 20 21 22 24 24 25 1012 sides, of course, will have an opportunity to answer what the amici curiae may say. I think we ought to start with the plaintiffs, and then d ie defendant, and then have the have the amici curiae and then come back up the line, so that we will expect to hear from Mr. Nabrit probably twice. Will anyone else argue on your side? MR. NABRIT: I believe Mr. Hughes may have something to say. THE COURT: Yes. Well, we'll be glad to hear from him. I just wanted to get some idea; so Mr. Nabrit we'll open and then Mr. Hughes, and then Mr. Murphy, and then we will hear from Mr. Marbury or Mr. Eney or both, and then back up the line again. MR. NABRIT: I think perhaps Mr. Hughes will wait until after for rebuttal. MR. HUGHES: That is what I had anticipated, Your Honor. THE COURT: All right. MR. NABRIT: Perhaps both of us might. THE COURT: All right. That's fine. MR. MURPHY: Your Honor, may I say that John Sause who was originally slated to argue this case for the State has a conflict. He has two Court of Appeals cases which couldn't be removed from the assignment in Annapolis today, and he regrets it very much--not nearly as much as I 1 •) 4 4 5 (i 7 s !( 10 11 12 1.4 14 17) l(i 17 18 1!> 20 21 •>•> 24 24 25 1013 do. that effect. MR. MURPHY: I was happily contemplating the end of the legislative session, which just ended the other day, a little bit of a respite, but it just wasn't for me to familiarize myself with the facts of this case, and perhaps ray argument will reflect that, but I hope not to be longer than fifteen or twenty minutes, depending upon the Court's questions. THE COURT: And one of the amicus curiae, Mr. Coughlan, was engaged in a trial before Judge Northrop, which was expected to end yesterday but is going through most of today at any rate. (Discussion off the record.) THE COURT: While we wait, just a little housekeeping, I want to compliment both sides for the fairness with which they have prepared the statements of facts. I think it is quite remarkable that there has been so little suggestion for a change, and most of it a matter of phrasing which seeks to use one word rather than another word because of its legal implication. There are just one or two things that we might clear up. I am not quite clear on what the defendant means by questioning Note No. 3 on page 3. THE COURT: Yes, he wrote to me a letter to 1 • ) :{ 4 .”) (i 7 S !) 10 11 12 10 14 ir> lli 17 IS 1!) 20 21 ■’2 20 24 20 1014 Are you familiar with that or is Mr. Sause familiar with that? MR. MURPHY: Mr. Sause, Your Honor, was more familiar with it, but I think what he has in mind is, my memory is hazey, is that these forty-five or other incidents on the list which I submitted to the Special Masters, I have no recollection of that. I have a list of more than forty- five. MR. NABRIT: I think the No. 45 was the number mentioned in the Special Masters' report. The second paragraph— THE COURT: Yes. MR. NABRIT: --of the Special Masters' report where they say that they found no material listed and so forth. THE COURT: Yes. Well, I'm not sure it's 45 in addition to the 215. MR. MURPHY: Yes. THE COURT: I think that's a mistake. Could somebody on your side check that with Mr. Sause when he gets back this afternoon or check it with him tomorrow in order tc just try to clarify the facts. MR. MURPHY: All right. THE COURT: You may have to get Mr. Bowen to 1015 TT 7 i :{ 4 (i s !) 10 11 12 i:i 14 IT) Hi 17 18 10 20 21 come over because I would like to have the facts clear on it, and I am not sure what this Note 3, how it ties-in with what the Masters said. Now, there are only one or two others that worry me much. There is another note on page 27 which the State has questioned. Well, it's not a note; it's a statement four lines from the bottom, and it has a question mark. MR. MURPHY: Well, I notice there, Your Honor, as it refers to a search for weapons or other evidence, and there was some evidence about patting down, Mr. Cooper, I believe, but beyond that there was no evidence that a proper inference could be made from it. THE COURT: Well, then that is a matter that will have to be decided if it is important. Other than that it seems to me there is very little use in arguing, for either side to argue the facts particularly. Do you want to argue any of the suggested changje Mr. Nabrit? It looks to me that it's mostly a matter of choice aside from a few matters like that, it's mostly a matter of choice of words. MR. NABRIT: I'm just looking at my notes on 22 24 2f> it. On page 7, Your Honor, the middle of the page, with respect to the search of Roscoe Cooper. 1 • ) :i 4 5 (> 7 S !) 10 11 12 14 14 15 1(i 17 IS 1!) 20 21 •»2 22 24 25 1016 MR. NABRIT: Yes. THE COURT: My note, and what I will find on that, I made a note of that too, that the Sergeant admitted patting down, according to my note. My note says that he testified he patted him down. THE COURT: Roscoe Cooper? MR. MURPHY: Somewhat of a frisk. THE COURT: What? MR. MURPHY: Somewhat of a frisk. I don't think it was a search. THE COURT: We'll change the word "search" to "patted down"; and it will stand. MR. NABRIT: Then on the next page, referring to the search of the Lankford home. It's page 8, Your Honor and it says that the officers proceeded and took up a positioj: around the house at two a.m., and Hughes and Schnavle went to the front door with several other officers, and they say two other officers. THE COURT: My recollection is that two officers went to the door and the others stood on the side walk. There were more than two there. MR. NABRIT: Yes, sir. THE COURT: It's rather unimportant. MR. NABRIT: And then the discussion on the 1 •) 4 ’) li 7 s i) 10 11 12 l.'l 14 1.7 1<> 17 18 1!) 20 21 ■>•> 22 24 22 1017 next page, the discussion of the testimony with respect to the variance, the mention of the numbers. MR. MURPHY: There were two with shotguns and machine guns. That's what it seems to be, several with shotguns and machine guns, and I think the indication there is that there were two. THE COURT: Two went to the front door and two went to the back of the house. Some went to the— . MR. MURPHY: Lieutenant Schnavle, Your Honor. No, this is not it. Just aTHE COURT: minute. Which is this? MR. NABRIT: MR. MURPHY: THE COURT: they went to the back. MR. NABRIT: a great deal. THE COURT: This is the Lankford house. Parkwood Road. Yes, it was the other place where I don't know that it amounted to Well, I'll check up the testimony of the officers. Certainly there were more than two there immediately after he went in. There's no question of that; but I had the impression that somebody was also in the back. MR. NABRIT: That's the part. THE COURT: It was sort of a general practice, I think. MR. NABRIT: Yes. 1 • > :i 4 r> <i 7 S !) 10 11 12 i:i 14 ir, l(i 17 IS 1!> 20 21 •*2 22 24 2o 1018 the front and to have a couple with the guns in the back, and then other men who didn't have the machine guns would come up with them. I think there were more than two--more than two men were there at the front door undoubtedly; but I'm not sure that there were more than two with guns. I understand your point. MR. NABRIT: And I think that the balance of this, of the changes are a matter of, a choice of language and euphemisms, and so on. THE COURT: All right, Mr. Nabrit, I'll be glad to have you start. ARGUMENT ON BEHALF OF THE PLAINTIFFS MR. NABRIT: Thank you, Your Honor. May it please the Court, the plaintiffs in this case, Negro citizens of Baltimore, Maryland sedcan order from this Court to preserve one of the most precious rights that free people can claim; the right of security and privacy for themselves and their families in their own homes against lawless intrusions by policemen. As I see it, the overriding issue here is whethe Commissioner Schmidt and his men are the law or whether the Court will bring them under the law as written by the Founding Fathers in the Fourth Amendment. THE COURT: To have a couple with the guns in 1 ■» :i 4 5 (i 7 S !) 10 11 12 14 14 1.') l(i 17 IS 1!* 20 21 ■»2 22 24 25 1019 The Court heard more than forty witnesses testii We filed a brief setting up the facts in considerable detail. I don't intend to describe the facts in any detail; but for m< a single incident epitomizes what this case is all about. I think of Mr. Samuel Lankford wakening up in the middle of the night in his own bedroom finding four polic< men with shotguns in his room shining a light in his face and asking a question. I think if one can imagine that in one's own home, then the issue in this case is clear. I would venture a guess that if you ask the average citizen to give you his idea of what a police state is like he would describe something just about like that. H would talk about a place where police can invade homes at wil at any time of the day or night and search and arrest on the slightest suspicion without being answerable, without being answerable to their conduct in a court of law. So we think that the case is important because in a very real sense the rule of law that is at stake in a case such as this one. I take it that there is no real question about the Court's jurisdiction. It hasn't been argued. There has been no answer to our argument about jurisdiction, and Congress authorized-- THE COURT: It was argued and overruled beforei 1 ■> :t 4 7> <i 7 s !) 10 11 12 14 14 15 1(> 17 IS 1!) 20 21 •>2 24 24 27) 1020 you were in the case on that first evening, the State filed a motion to dismiss, which I overruled. MR. NABRIT: Actually the first day I was here, Your Honor, we argued the motion to dismiss. THE COURT: Yes. MR. NABRIT: In any event I would submit that the Congress did authorize Federal Courts to grant legal relic in cases such as this by the Ku-Klux Act of 1828, or 1871, nov Section 1983 Title 42, and the Supreme Court in Monroe vs. Fay plainly held that this statute authorized suits against policemen, in that case Chicago policemen, who made illegal searches. The plaintiffs in this case have proved that in a short nineteen day period-- THE COURT: You referred to the Ku-Klux Act. That's on your brief. Is that 1982, the one you are talking about? MR. NABRIT: Yes, sir. THE COURT: That's all right. I just wanted to be sure that we had the right number. MR. NABRIT: That was the third Civil Rights A): which the Reconstruction Congress passed, and it's the basis for almost all of them. THE COURT: Yes, I read it recently. I just wanted to be sure that we had the right number. 1021 13 l •> 4 .) (> ( S !) 10 11 12 111 14 IT) K) 17 1H 111 20 21 20 24 25 MR. NABRIT: The plaintiffs have proved that in the nineteen day period Baltimore policemen carrying in most cases shotguns, submachine guns, but carrying no search warrants, searched over three hundred places, most of them Negro homes. We think that we have demonstrated that the police followed general practices of searching on mere suspicions and conclusions but without probable causej e-hat they searched homes without regard to consent, making demands for admission at gunpoint and under color of their office. We think we have demonstrated that it is clear that the defendant still contends that these practices were lawful and justified, and thus there is a real danger that the same conduct could continue unless the Court restrains the practice. In our brief, Your Honor, we have argued the three main substantive issues at considerable length, and rather than repeat them all, I would simply like to state thti points without argument again. pirst we are urging that the Fourth Amendment requires that it be a Judge, a Judge empowered to issue a search warrant, and not policemen, who makes the decision about whether the police can invade the privacy of a home to search for a person, just as is true in the case of police searching for tangible goods. 1 •) 2 4 5 (i 7 S !) 10 11 12 12 14 IT) 1<> 17 18 1!) 20 21 22 28 24 25 1022 flatly holds that? MR. NABRIT: No, Your Honor. We rest on the two briefs that we have filed on that subject. I would comment that I think that none of the cases cited in the defendant's brief, and they are all collected without much discussion of them on page 8 of the defendant's brief. I think that none of these cases really meets the problem or answers the question which we ask, and that is why, why can it or how should it make any difference to the is person whose privacy/invaded that the police are looking for a person rather than looking for tangible goods? I think it is interesting too that one of the cases cited, a case in the defendant's brief, the case called the Massachusetts case of Commonwealth vs. Reynolds is repeatedly relied on in decisions which have more or less repeated the rule that police can enter homes to arrest provided they have reasonable grounds to believe that a suspei felon is there that they have a right to arrest there and never mention search warrants. This is a case decided by the Massachusetts Supreme Court in 1876, and it is very revealing. That Court says, and I quote: "The doctrine that a man's house is his castle which cannot be invaded in the service of process was always subject to the exception that the liberty of privilege THE COURT: Now, have you found any case that 1 •> :i 4 5 (i 7 S !) 10 11 12 12 14 15 1(4 17 IS 10 20 21 22 22 24 25 1023 of the house did not exist against the King. It had no application therefore to the criminal process." Well, I understood that's what the American Revolution was all about, or one of the things, and certainly that is what the Fourth Amendment is about, which established the proposition that it is the Government, that the citizens do have the protection in their homes against searches by the Government. I think it makes all the difference in the world whether a Court approaches the Fourth Amendment problem in the way that the Supreme Court did in Boyd vs. the United States and cases like that or approaches the problem from the point of view of this Court, that this Court said that there is no privilege against the King. THE COURT: Now, if you have finished that, I would like to ask your comment on a couple of points, and I'l be glad to hear from other counsel on it also. I have not read all of your cases; my law cleric has read a great many of them, and it is my understanding from his report to me that the Restatement does not discuss constitutional questions at all on this point that the State is relying on, that these cases generally do not discuss the constitutional point to the extent that they do not flatly say it is constitutional. They are not against your argumer On the other hand, it seems a little 1024 16 4 .) (i i S !» 10 11 12 12 14 ir> If) 17 18 1 ! ) 20 21 28 24 27) that the ALI would announce a ruling if any considerable number of the reporters or advisors or the members of the Institute thought it was unconstitutional. I would like a comment on that point, and the other fact, if there is no case which supports your construc tion of the Fourth Amendment, why isn't that some evidence that it has not been regarded as protecting against the search for persons, which would tie-in with an argument that the Fourth Amendment and the Fifth Amendment are to be considered together and are primarily to prevent self-incrim ination, and to that extent going to the question of property or against the man who is to be the defendant rather than someone else. Now, there are a good many questions, but I would like a comment on that because that is one of the things that the Court is going to have to face. HR. NABRIT: Your Honor, I don't find it surprising at all that the ALI did not discuss the Fourth Amendment question when they wrote the Restatement of Torts in 1934 because after all that was, I guess, sixteen years, a long time before Wolff vs. Colorado came down. THE COURT: Well, it was after Boyd. MR. NABRIT: Yes, but it was before it became apparent that the Supreme Court held that the Fourth Amend ment was applicable to the States to the due process clause 1025 of the Fourteenth, which was in Wolff vs. Colorado in 1949. As a matter of fact, one of the cases cited in the State's brief, Section 206 of the Restatement of Torts does have a comment. THE COURT: Which is that? MR. NABRIT: There is a comment on Section 206 of the Restatement of Torts which contemplates search warranty and it's at page 514, and it's not very elaborate, and of course, indicates in a very general way that they thought, I think there were some, not many cases, or there weren't many cases at least where warrants would be necessary, but they were addressing themselves primarily, I think, to the problems of state law and the restatement of state law long before whal: was done generally with regard to the Fourth Amendment as placing limitations upon the states. Now, Your Honor's second question I'm sure I understand, I thought I understood Your Honor to ask whether the Fourth Amendment provisions were not primarily addressed to the problem of fairness to criminal defendants like the self-incrimination provisions of the Fifth Amendment, and there are a variety of ways of answering that. One can answer it by pointing, I think we have in our brief that many times the Supreme Court has said that the privacy of the home was one of the great things at stake. But I think if you look back historically to 1026 18 4 5 .) (i i S !) 10 11 12 IS 11 15 1<> 17 18 1!) 20 21 22 25 24 25 the evils that gave rise to the Fourth Amendment, the Colonial. Writs of Assistance, it's very clear that privacy was what they were dealing with and what they were thinking about. These were customs officers, and Writs of Assistance enabled customs officers to go around and search wherever they pleased to find untaxed goods. THE COURT: To find untaxed goods? MR. NABRIT: Yes, sir. THE COURT: Which would be the basis for a criminal prosecution. That was my understanding of the history, just what you said. MR. NABRIT: Well, I have always understood that it was the searches that were objected to and not the prosecution. Now, to be sure, in the Boyd case, in Monroe vs. Paige, pardon me Your Honor, Mapp vs. Ohio and other cases the Supreme Court has indicated that the Fourth Amendment and the Fifth Amendment run together, and to me this has never been inconsistent which is what I thought was the obvious intention of protecting privacy. I'm afraid that my focusin,; on this one part of Your Honor's second question I may not remember all of it. THE COURT: Well, I think you answered it. You have covered the point I wanted you to cover. I'll be glad to hear more on it because this is one of the questions 1 4 .) <; i s !) 10 11 12 13 14 IT) 1(» 17 that certainly must be decided, and of course, you understand that any questions I ask are intended to develop points and not to indicate any opinions. MR. NABRIT: Yes, sir. Mr. Zarr has called to my attention one other thing Your Honor mentioned, and this is, why hasn't there been a case like this before? Why hasn't a Court made any clear rulings on it? Well, again there are several things I think to be said. One is that, and I don't know that I necessarily have them in the order of precedence, but one thing I think to be said is that in Jones vs. United States the Supreme Court recognized that the question existed and declined to decide it because it recognized the difficulties and that it did not have to dispose of it in that particular case. That was in 1958. THE COURT: Well, that was a criminal case too 1027 18 1!) 20 21 22 28 24 was it not? MR. NABRIT: Yes, sir. THE COURT: But certainly the police have in all states, and the federal officers to whom the Fourth Amendment has always applied, have certainly with probable cause gone into houses when they have a search warrant or even without a search warrant if they have the appropriate probabLs cause and arrested people, and the point that you raise would 2 7) 1028 20 l 4 .) (> / ,s !) 10 11 12 13 14 ir> 10 17 18 10 20 21 20 24 25 have been available to all of those defendants. MR. NABRIT: I think that one reason why there hasn't been much, not a great deal of law on this point is the reason that Mr. Justice Jackson gave, I think, in a lengthy opinion which is quoted in five of our first brief, and I think it's the Rabinowitz case, or Brenegar case, and this is simply the idea that the Courts only see the top of the iceberg, in a sense, that by the nature of things, the nature of the legal system, most of these problems don't come to the attention of the Courts, and part of it is that the whole problem that Mr. Justice Murphy and others have developed at length in connection with the exclusionary rule, it's the idea of the damage suits for illegal searches, which are notoriously unprofitable and nobody bothers to file them. So that we come to the idea that we have isolated the individual searches so that the issues are framed in a way that the litigants can, and we think we have here, would show a pattern and practice of police activity and therefore entitle themselves to an injunction, and it's only the unique thing, as I think, about this case is the availa bility of the evidence, the fact that the evidence was available to show that the police activity was part of the practice, of a practice which was a result of the routine procedures, and this was largely because everything was expressed in a short period of time and it was widely 1 •J :i 4 5 (i 7 S !) 10 11 12 12 14 If) 1<> 17 18 1!) 20 21 22 22 24 25 1029 published and well-known. I think that these are the principal reasons, and I think surely it's not the dragnet type of police tactics that have been unknown to our society, and I think that there have been, that this is something that we have lived with, and novelists have commented on it, and a lawyer recently tolt about this case said that that is what Richard Wright wrote about in the novel Native Son, and this is to me a substantia", problem in our society, and if the Fourth Amendment doesn't deal with it it doesn't live up to its promise. Now, another basic issue in the case, I think is the whole area of probable cause for searches, and I submit that there is really no serious issue now. The facts are pretty well established but that the police routinely acted and routinely acted to conduct searches in total disregard of the probable cause standard. They've been doing so for years, as the witnesses testified to such things as going out and making searches on anonymous telephone calls without checking them out at all. Several police officers sat on the witness stand, and superior officers who have been on the force for many years, they said that they did this sort of thing all the time. Judge Chesnut in this court in theRuffner case in 1931-- 1 •) 4 4 5 (i 7 S !) 10 11 12 1.1 14 IT) Hi 17 18 1!) 20 21 22 24 24 25 1030 THE COURT: Which case? MR. NABRIT: United States vs. Ruffner, Your Honor. THE COURT: I just wanted to get it. MR. NABRIT: R-u-f-f-n-e-r. THE COURT: All right. I'll find it. Don't bother to look. I just wanted to be sure I had the name right. MR. NABRIT: In 1931 Judge Chesnut ruled here in Baltimore that police searches based on anonymous tips were not lawful, but here we are, the Baltimore police still routinely doing the same thing in 1965. And with a point like this we think that an injunction is long overdue. Now, I am not attempting to touch on all the subpoints of probable cause and not just anonymous tips and others. THE COURT: I understand. MR. NABRIT: And things that are being done routinely. The defendant's brief I notice has not discuss the probable cause issues in terms of the facts of any particular case, in terms of the general practice. THE COURT: You needn't argue further that many of these searches were not made without probable cause 1 •) 2 4 5 (l 7 S !) 10 11 12 i:{ 14 15 1<> 17 18 10 20 21 22 22 24 25 1031 except in rebuttal to anything that Mr. Murphy may say. MR. NABRIT: Well, on the question of consent we also take the view discussed in the briefs that the police failed to make out a defense that the searches were consented to generally or in the particular case, that a search without regard to the occupant's wishes, that their mission was to get inside, and that an empty house is, they searched the houses and they went in where small children were at home, and there is no evidence that they ever told anyone that they had a right to use it, and to the contrary they routinely demanded admittance under color of their badges and displayin weapons We think that injunctive relief is appropriate in this case under all the provisional equity principles, the irreparable h a m which I should think, the irreparable harm I think we all would agree, the injury to the right of privac cannot be adequately valued or compensated for or compensated for in monetary terms under any standards of measuring damages in such cases as this admittedly and was not limited as in many cases would be with respect to injuries to property or physical damages. But in any event the Supreme Court has made it plain that its view is that the Fourth Amendment rights cannot adequately be safeguarded by damage suits, and that is one of the principal reasons for the exclusionary rule. 1 ■> 2 4 5 (i 7 s !) 10 11 12 12 14 15 i < ; 17 1H l!l 20 21 22 22 21 25 1032 The threat of future violations, future actions such as this, these practices, the patterns of conduct exemplified by the investigation of the Veneys, the searches for the Veney brothers, I think it's clear that with the threat of its continuance on the face of Commissioner Schmidt general order, officers are instructed to get warrants only when they think there is not probable cause, and we don't know that word, but we have Lieutenant Cadden's testimony that he led these investigations in the field, that he did nothing to be ashamed of and he would do the same thing all over again if they got another crime like this. I think that's enough to settle the matter. There is within the meaning of so many of these cases that there is a likelihood of the continuance of the pattern of the defendant still today or in the brief at least, maintain that nothing about their actions is wrong, and there's a remarkable sentence there that considering everything, and it's on page 13 of their brief that considering all of these things-- THE COURT: Whereabouts on the page? MR. NABRIT: Tne last paragraph. THE COURT: All right. MR. NABRIT: The sentence is divided by the parenthetical remark. THE COURT: All right. 1 •) :l 4 5 (i 7 S <) 10 11 12 1.1 14 ir> i« 17 1H 1!) 20 21 22 2-1 24 25 1033 deny that there is any special policy or practice in the Police Department of Baltimore City which was improper, so that in a sense there is an indication that the practices of the Police Department of Baltimore City threaten to continue, that it threatens to continue these practices in the future. THE COURT: Well, I read that as making a distinction between "policy" and "practice" on the one hand and "acts" in this particular case on the other. Perhaps I misread it and was not intending to be a denial that there have been some instances, perhaps many instances, in this incident, series of incidents, which were improper, but that they are saying, they are talking about policy or practice. I take it that is his point. I am not saying I agree with it, but that is what I understood, that he was intending to argue that. MR. NABRIT: Well, I guess we had better let the record speak for itself. THE COURT: Yes. MR. NABRIT: But I understood it the other way. I guess that is what it means. THE COURT: Well, look at his next sentence. That is why I say that is what it means. Look at his next sentence. MR. NABRIT: Well, even if that is so, I think MR. NABRIT: But the contention is that they 1 ■> :l 4 5 (i 7 S !> 10 11 12 i:i 14 15 1<> 17 18 10 20 21 22 22 24 25 1034 I come out at the same place because the people who led this investigation repeatedly said that they weren't doing anythin unusual, that the only thing unusual was the fact that it was a particularly serious crime, a particularly violent crime and they had more men in it and they were following the routine. The testimony Your Honor will recall that there wasn't any special decision to go out and seek a warrant, and in this investigation it was something that they did generall and the testimony also that it was routine with respect to handling anonymous calls. THE COURT: Well, they are two different thing Of course, you mentioned those two items, and I must consider each of those items, and the argument you are making is an argument which certainly must be faced and decided, faced by the State and decided by the Court. My only question was that I did not understand that they were admitting that there were no individual incidents, and I take it that they are conceding for the purposes of this argument that there were some, that they were really going at policies and practices that are improper Now, you have pointed to two of them, the decision not to seek warrants, which they have agreed is a regular practice where they believe that they have probable cause. They say that that is not improper. 1 •) :i 4 5 (> 7 S !) 10 11 12 12 14 15 i<; 17 18 1!> 20 21 22 22 24 25 1035 THE COURT: And then your second one is following anonymous tips. Now, I would like to hear from Mr. Murphy about both of those. I am interested here in picking up from your point of view what you consider to be policies and practices which are likely to be repeated which would be the basis for an injunction. Now, I think that the evidence makes it quite clear that unless enjoined or otherwise persuaded that the State at least intend to continue to enter houses where they have a warrant for the arrest of a man without getting a search warrant if they have reasonable cause to believe that he is in the house. They are also saying that they can do it even without an arrest warrant in certain cases; so that I take it that there is no dispute about that, and really it's a ques tion of law on that point. 1 don't know whether the anonymous tip is a question of fact or a question of law or both. We will have to hear from Mr. Murphy on that. What other particular policies and practices are you relying on, because I want to be able to hear from Mr. Murphy on it, and also perhaps from the amici. MR. NABRIT: Well, I think that there are a HR. NABRIT: Yes. great number of things. 1 •) :i 4 5 <; 7 ,x !) 10 11 12 12 14 15 Hi 17 18 1!) 20 21 22 24 25 1036 THE COURT: Yes. broad subject but there are a variety of practices connected with the probable cause point. THE COURT: Well, there isn't any question that they have no right to do it without probable cause, and I don't understand that they justify that. I think that the say it's a question of fact in each case, and I don't under stand that the question that they must have probable cause. MR. NABRIT: No. THE COURT: And there certainly have been in this case many instances of that, and aside from this case they frequently do it without probable cause, and that ties-i with the anonymous tip thing, and that is simply one factor of the probable cause, the tips. MR. NABRIT: Well, let me try as best I can to mention some of these things which I think are general. I think Your Honor will recall Lieutenant Hewes who led the raid at the Lankford house, and I don't recall this other point or not but this was where they received an anonymous call. THE COURT: He was the postal employee, wasn't he? MR. NABRIT: Well, we can take it up by a MR. NABRIT: That's right, and the policeman got the call on the street which was supposed to have been 1 •) 8 4 5 (i 7 s !) 10 11 12 18 14 IT) 1 (i 17 18 19 20 21 •>2 28 24 25 1037 from an unknown man claimed to have been the caller. Well, that witness testified that the general procedure, something, I think he was going to do something unusual was to contact the night inspector when he was on duty at night, but that he didn't, and in this case he was unable to reach the night inspector, that he couldn't find him, so he went ahead and made this search because based on his twenty-odd years of experience as a police lieutenant he had no doubt at all in his mind that the night inspector, and he even said it was his duty, and he was derelict in his duty he thought if he had not made the search on the basis of that totally anonymor information, information that he had no way of evaluating whatsoever except if he talked to the informant himself, and it was information which was in a case like that, it was the character of information, information that the Veneys were at th§ house, but it was an unknown informant, uncorroborated, admittedly hearsay report that two people who resembled the Veneys had at some time not given gone into the house. THE COURT: Well, if this is the anonymous tip I understand the point, and I don't understand that there is any dispute that they did it on anonymous tips in this case. The question is, whether making such raids on anonymous tips is a general practice of the Department or is a character is ti. of this situation in which they were, let us say, at least unduly steamed up. 1 •) :t 4 5 (i 7 S !) 10 1 1 12 12 14 15 ltf 17 18 li t 20 21 22 22 24 25 1038 myself to. Lieutenant Hewes testified that he thought he considered it his duty based on his experience that he had no doubt that the Inspector would have expected him to go in and make a search based on that kind of information, and it seems to me that is much more convincing evidence with respec to general policy than any kind of statement of policy with the experienced officer whc has been on the force a long time acting in accordance with the normal expectations of his superior officer. MR. NABRIT: Well, that's what I'm addressing THE COURT: Has that testimony been written up MR. NABRIT: It has not. THE COURT: You say it has not? MR. NABRIT: It has not. THE COURT: I will check my cards and if there is any difference between my notes and yours I will ask the Reporter to type that part up. MR. NABRIT: There were two witnesses named Hughes. This was Lieutenant R. J. Hewes, H-e-w-e-s, THE COURT: The testimony was on January 26th. MR. NABRIT: I was examining him and asked him thac is, asked him who made the decision and whether he made it or the dispatcher who gave him the information on the radial and he said that when he received the information it became his job to make the turn-up. 1 ■ ) :i 4 r> <i 7 S !) 10 11 12 i:i 14 IT) 1(> 17 1H 1!) 20 21 22 22 24 25 1039 I don't have the notes here, but I recall that he was very positive about this, that he said it was his duty and I think you recall the words "he would be derelict in his duty if he did not make the search." And then I asked him if he based that statement on general procedures, and he said, indicated that the genera procedure in the Department whenever you're doing anything like that is to call the night inspector, and then I asked him, apparently he had said something. THE COURT: My notes go as far as yours, and then I'm afraid I stopped. As far as you have gone I have the note, the same thing. MR. NABRIT: You said you're sure he wouldn't have stopped you, and you asked him was it the regular proce dure, but my recollection is the statement he made was that he was sure that the night inspector would have approved if he had gotten in touch with him. THE COURT: I'll have that part written. MR. NABRIT: I think I can get together some more examples of this in connection with the whole matter of demanding, of going up and demanding admittance. I take it that at best, the best you could say was that they said they came up to the door and knocked and said they wanted to come in, and not a policy or any pattern of going up and explaining in any detailed way that they had 1 ■ ) :{ 4 5 (i 7 s !) 10 11 12 12 14 IT) l(i 17 18 19 20 21 22 22 24 22 1040 no warrant, that they could only come in if they were permits to, but they go up and demand entry. THE COURT: Isn't that the case that we were ji working on on habeas corpus? MR. NABRIT: I think it is. THE COURT: I think the Maryland rule on that announcement, isn't that the Henson case, the Maryland rule which is perhaps different from the federal rule on that? MR. NABRIT: It's part of the formality with respect to entry, and I was talking about this comment with respect to consent. THE COURT: Well, I noticed that, but as I understand it, the Maryland rule on that is laid down in the Henson case which is different from the rule that was applied by Judge Watkins in the Lawrenson case in this Court, and the question is the extent to which Ker vs. California justified such a rule as the Maryland court adopted in Henson. I get that problem sometimes in habeas corpus cases. MR. NABRIT: Yes, and I do have somewhat different points. THE COURT: Yes. MR. NABRIT: And that is the way the police act when they go in, and it's a question of the way they normally act when they go in in order to get consent which is 1 •) :i 4 5 (i 7 S !) 10 11 12 i;i 14 ir, l(i 17 IK 1!) 20 21 •)•> 20 24 25 1041 irrelevant with respect to describing what they did, but I didn't mention some of the things they did with respect to the guns and so forth, which is one particular problem. THE COURT: Well, of course, that is not the point, and that is not a customary, it is not customary for the police to go in with sawed off shotguns every time they look for a man who has committed a crime. I think all police are armed. Undoubtedly the police are armed and carry revolvers whenever he knocks at the door, and there are various issues here. So far as affecting consent I have your point; and certainly the question I asked did not affect consent. It's a question of what the police may continue to do, whethe the Court should enjoin them. Granting that in certain instances in this case they have acted without probable cause and without consent and have gone in on the grounds that, let us say, the consent was a forced consent and therefore it's improper in this case, the question is, if you are asking for an injunction, the court would have to, in order to write the kind of injunction you are asking here, determine the constitutionality of Henson in the light of Ker in this sort of a very general procedure rather than with respect to individual instances where the rule will eventually no doubt be clarified. MR. NABRIT: I don't think so, Your Honor, 1042 34 i :? 4 •) <> i S «) 10 11 12 i:i 14 15 IK 17 18 1!) 20 21 24 21 25 because I think, as I gather from Ker that it deals with a situation of the pattern of the police conduct whether or not they explain to a person they're coming in and looking for, police adequately explain to persons their purpose in coming in and look for individuals. I was not addressing myself to that but I was addressing myself to the question of whether or not they demanded admission, whether or not they say, "You have to let me in or I'd like to come in only if you give me permission, can I come in and search your house?" That's the problem with respect to the question of consent, but you don't have a question in this case from the evidence that it was the situation before they made entry that they told the people who answered the door that they were looking for someone or searching someone for whom they had a warrant. THE COURT: Well, as I understand, the evidence in this case is that they habitually--and Mr. Murphy can correct me if I am wrong--after knocking at the door, stepped up in with their guns, shotguns in a position to cover some body who might be coming down the steps or who might be in the door and that they did enter that far before asking permission in many, if not all, cases. But I'm granting the problem and granting the evidence in many instances that you say. You are now, as I 1043 35 l 4 4 (i i 8 !> 10 11 12 10 14 ir> 10 17 15 1!) 20 21 24 24 understood it, talking about either a declaratory judgment with respect to that or a specific injunction with respect to that, and I am not quite clear the type of injunction that you think this Court should issue in that respect, and if you are not perhaps addressing yourself to that point-- MR. NABRIT: Yes. THE COURT: If you are addressing yourself as to the likelihood of something improper continuing, that argument bears on injunction rather than on anything else. MR. NABRIT: Well, it's just that I started out with the fact that the police attempted to justify every search whether or not they had consent. THE COURT: They began by doing it but they had to throw in the towel on that because the evidence shows some searches without consent and many without it. MR. NABRIT: Well, as I say, and I suggest this is the problem, that when they, you know, they come and demand admission and nobody fights them out and they say that's consent. THE COURT: Well, let's say that I agree with you that that is not consent, I'm not sure that Mr. Murphy is going to argue it, but consent given after a man has stepped across your doorsill with a machine gun at ready, is not the kind of consent that we are talking about. 25 But what does that have to do with the right 1 •> :t 4 5 (i 7 S !) 10 11 12 i:t 14 15 1(> 17 18 1!) 20 21 22 20 24 25 1044 to an injunction in this case, and specifically with an injunction which would contain what provisions? I have to be specific on that. MR. NABRIT: Well, now, I'm trying to be specific also, Your Honor, and in 14 of our second memorandun I may refer to that. THE COURT: The second interim memorandum. MR. NABRIT: The memorandum, yes. THE COURT: Yes. Page 14. MR. NABRIT: I think I did the best I could on it, and I think that this discussion of consent here is in a context of an order which enjoins them from conducting searches without consent, and it tells them that they can't rely on consent in the kind of searches that they have been using in this case particularly as developed in this record. In other words, consent as brought out as a case of a defensive matter, it obviously assumes some significance as more of a defensive matter to protect society and what happens is that they raise this in every case. THE COURT: Well, your point, your strongest point on that, as I understand it, would be this, that if there is probable cause, well, of course, consent would take the place of a search warrant; so if there is no search warrant or if you're not entitled to a search warrant, or if they have not probable cause, probable cause is sufficient, 1 •> :{ 4 f) (i 7 ,S !) 10 11 12 18 14 ir> lfi 17 IS 1!» 20 21 22 28 24 25 1045 but what you say is that they habitually enter without probable cause generally relying upon consent which are no consent, and that they are likely to continue that unless enjoined? Is that your argument? I don’t want you to agree with me if you don't, but is that your argument? MR. NABRIT: Well, I think that states it better than I could. Well, it was part of my statement wit! respect to the general facts, but I can mention some more. THE COURT: Well, I will read all the briefs and will try to collate them and consider all of them. MR. NABRIT: Well, I was talking about the whole problem of their duty to society. THE COURT: Yes. MR. NABRIT: And this touches on the mootness idea which is suggested by the defendant's brief, and they argued it from the first day, I think, that the case was mool because of the Commissioner's order, and I don't think we hâ anything new to say on that except the question with respect to the Fourth Amendment, and the new argument that relates to the fact that the persons who were sought in the last investigation are in custody, and again I think Your Honor understands our position in this, one point during the trial Your Honor ruled out some questions or issues involved because there were several sheets that Your Honor gave to us 1 •) :{ 4 5 (i 7 S !l 10 11 12 i:l 14 15 1(1 17 IS 1!) 20 21 22 22 24 25 1046 or to counsel, and you indicated the various parts of our complaint which related to the threat of future actions like this by the police in investigating other crimes in the future, you made it clear, I think, that in the second brief that in our view the case was not in any way limited to the Veney investigation. THE COURT: I understand that, but let me ask you once more this question to be perfectly clear: What is the class or classes that you claim to be representing? I take it that under the heading of "class" I posed several questions. First, is it a class action? MR. NABRIT: Yes. THE COURT: And second, what is the class? I would like to be sure that I have your final position on that point. MR. NABRIT: Yes, Your Honor. Let me--I realize that I can always give you a better answer after. THE COURT: Take your time and develop it. MR. NABRIT: Let me try to discuss this in the whole problem of the class of the context. THE COURT: All right, and if you hadn't reached that point and intend to reach it later, don't let me interrupt you in the course of your argument. MR. NABRIT: I'm taking a whole lot more time 1 • > :i 4 .") (i 7 S <> II) 11 12 12 14 IT) Ki 17 18 1!) 20 21 22 22 24 25 1047 than I Intended to. THE COURT: I never expected the case to be argued in a half-hour. MR. NABRIT: There was only one other matter I was going to talk about before that, which relates to the balance of equities involved, and I don't think there's very much to say on that point; but on this point of the class action, that in the defendant's brief it argues that the most that the plaintiffs are entitled to is an order which enjoins unlawful searches of themselves and not a law or an order with respect to others. Well, stating that argument I think focuses, puts the whole class argument or puts it aside, and in effect the police seek a rule which would allow them to violate the Constitution that these persons cannot come into court and get an injunction, and they indicate a sort of a one bite rule of law where people are entitled to one bite that they can search in that way, a sort of every dog is entitled to a one bite rule and they can search that way. THE COURT: And that one bite on each half of the body. MR. NABRIT: Precisely, but we submit that the Federal Rules 23(a) (3) that we relied on to file this class action clearly allows a litigant to do what these plaintiffs attempted to do and that is to seek an order on behalf of 1 •) :{ 4 5 (i 7 S !) 10 1 1 12 12 14 1.') l(i 17 18 15) 20 21 22 22 24 25 1048 others where there are common questions of law or common questions of law or fact and a common relief sought even though the right sought to be vindicated is not a joint or common right but is a several right. Why do we have such an animal as this, what Professor Moore called a spurious class action. Well, it is in my view on simple reflection an historical principle of equity of avoiding a multiplicity of litigation where it is possible to do so, and it's not in our brief, but I recommend to the Court's attention the discussion of this type of class action in that work which this shows that / is what is involved, that is the issue of the multiplicity of litigation. THE COURT: Well, of course, that's generally true, that if there are individual rights, it doesn't make any difference, that lightning is not going to strike the same tree twice. What you are trying to protect is some class, largely the group of all the plaintiffs. MR. NABRIT: Yes, that's right. THE COURT: Or all the people whose houses were entered in the Veney investigation. Your class is large, but I'm not sure yet whether your class is all citizei of Baltimore or all Negro citizens of Baltimore. MR. NABRIT: Well, I think it's all citizens of the City, anybody who is within the reach of the defendan 1 •) 2 4 5 (i 7 S !) 10 11 12 12 14 15 l( j 17 18 1!) 20 21 22 22 24 25 1049 because anybody within the reach of the defendant-- THE COURT: I suppose it would be "residents'* rather than "citizens", wouldn't it? MR. NABRIT: Yes. MR. MURPHY: Yes. MR. NABRIT: Because it's the people who live here. THE COURT: But you haven't answered it because are you making a special right of Negroes or is it all citizens, all householders in the City or all Negro householders or both that you claim? Are you claiming two classes or one class? MR. NABRIT: No, there are two and the equal protection claim, which is a separate argument, and it's the idea that the police have in fact been picking on Negroes in making this type of widespread dragnet operation, but I think that to answer the question in terms of the meaningfulness of it, that is what kind of, if it was determined that the defendant was violating an unconstitutional policy, should they be enjoined from not violating that policy again with respect to the place, with respect to the plaintiffs, again with respect to the people, the plaintiffs and other people whose homes were searched or again anybody in the City of Baltimore, and I think the answer to that is anybody in the City of Baltimore because what we are arguing about is that 1 2 :{ 4 5 li 7 S !) 10 11 12 t .' l 14 15 1(» 17 18 10 20 21 •>2 28 24 25 1050 the defendants have repeatedly violated the Constitution, and clearly I take it that it's agreed that the plaintiffs are or that their households are fairly typical of the homes that were searched, and obviously there are going to be individual variations of these, but those two cases alone of the plainti without any of the others do give you a fairly representative view of a look at what was going on. As for the whole idea of standing, these plaintiffs have standing to get this kind of relief that we have asked, and 1 say they do and I have not heard any argument to reply to it, and the defendants have not discusse this in any elaborate way in any manner that I recall, and I don’t recall anything about it although they did discuss the whole idea of the general orders that it amounts to the same thing, but with respect to the idea of standing is that when a person feels sufficiently that he has been hurt he should have a right to come in and make a complaint about it, and obviously anybody can complain, but we are arguing, if we hav|i an argument, whether anybody can complain about a systematic repeated routine violation of the Constitution by the Police Department. I don't doubt the answer to that for a moment. I can't believe that the right of privacy in a home is any the less the concern of the courts, the equity courts than other constitutional rights that the courts protect by issi 1 •) 2 4 5 (i 7 S !) 10 11 12 12 14 IT) Ki 17 18 1!» 20 21 22 22 24 25 1051 injunctions every day. Fourth Amendment rights are not second class rights in our law and I think the normal principles applicabl to other rights should protect us by injunction and by protective orders all the time which are applicable in many cases are also applicable here. To conclude, I suggest that it’s the most grotesque irony if the Courts concluded that they can protect the privacy of the guilty by applying the Fourth Amendment in criminal cases where the police make legal searches actually finding contraband, but that the Courts of the Unit* States are powerless to protect innocent victims of a lawless pattern of police activities. Thank you, Your Honor. THE COURT: Mr. Murphy, I suppose you'll be more than fifteen minutes, won't you? MR. MURPHY: Well, I hope not, Your Honor. THE COURT: Well, if you will, I think we migl take a break now, and perhaps it would be well to take short breaks later. (Thereupon, there was a short recess, after wh the following occurred:) ARGUMENT ON BEHALF OF THE DEFENDANT MR. MURPHY: I might state that the State 1 •) :t 4 5 (i 7 S !) 10 11 12 i:t 14 15 1<» 17 18 1!) 20 21 22 20 24 25 1052 hastens to join in a recognition of the various state and constitutional provisions that my brother cited throughout the various briefs and the oral argument today. Where we differ, of course, is in the applica tion of those principles. The State would say that the issue here, the real issue and the basic issue in this case is whether there is any valid basis in law for the intrusion into the question of what occurred in this case, and is it a question of whether the householder has the right to shut the door in the officer's face? That is not an absolute constitutional guarante The constitution prescribes only on reasonable searches and seizures, not all searches and seizures. In Ker the Supreme Court stated that the standard of reasonableness under the Fourth Amendment are not susceptible of Procrustean application, and they went on to say in that case reiterating what they said in other cases that it, namely, the Supreme Court, is not unaware of the demands of criminal investigations in making arrests. The background of this case briefly, and I don't intend to go into it at very great length, but if I may discuss it for just a moment, to discuss how this case came to this Court. Your Honor will remember that at that time we ts had a pretrial conference in Your Honor's chambers, and at 1 ■> :{ 4 f> (i 7 s !) 10 11 12 18 14 15 10 17 18 1!» 20 21 22 22 24 25 1053 that time it was very clear and very fresh in everyone's mind that there had been two shootings, one murder, and it was something like a four hour period separating the shooting Two Negroes were sought, and two white officers had been the victims of the shooting. The police thought they knew who these individuals were. Much publicity focused on it, so much that the TV trucks followed the polic< wherever they went. Rewards were offered, the alleged defendants were known, which is unusual in itself, and they were thought to be very dangerous, were thought to be armed, special squads were created, and Your Honor recalls the testimony, and it was a wide sort of search, and Your Honor will recall that we had investigations in Anne Arundel County Harford County, schoolhouses, public dance halls, churches, hospitals. There were a number of places in addition to private homes. Many of the homes were vacant even though when they got there no one lived in the home. There were no search warrants obtained in any of these cases because the police acting on their Manual of Procedure, on their digest of the law felt that they didn't need a search warrant in situations where they had probable cause to believe that the individuals for whom they had an arrest warrant were on the premises of a third person. They thought that was the law of Maryland and we argue that is the law of Maryland, and that law does not 1 •) :t 4 5 (i 7 s !» 10 11 12 12 14 15 10 17 IS l i t 20 21 22 22 24 25 1054 give a person a guarantee, and we feel it is implicit in Ker that that law does not give a constitutional guarantee, and the Fourth Circuit recognized it, and Maryland recognized it very clearly in the Henson case which was decided in Novembe of '64. In any event, this trial began against this background, Your Honor, and the total focus was on the Veney manhunt, and no one thought in terms of a broader, of a broader problem of the general police practices. This was a Veney manhunt, and that is what the plaintiffs themselves recognized in their first memorandum in which they say it was a unique, an unusual case, and the actual language that they used was that this case was unique in the annals of the law, and what we are dealing with is a very, a very specific situation that arose against a specific factual background. Their bill of complaint, as Your Honor knows, was based on a two-prong premise: The first ones that the police needed search warrants as a matter of constitutional sanctions before they could go into any house even though they had an arrest warrant, even though they thought they ha probable cause, that they needed a search warrant, that it was a constitutional prerequisite. Their whole case was pitched on that thought. The second aspect of the case was that what the police were doing was racially motivated. It was again 1055 47 i :{ 4 i ,s !) 10 11 12 IS 14 l r» 17 18 l i t 20 21 2S 24 25 that background that the relief prayed for was to stop these searches, to halt what was being done. There was nothing, I believe, in the initial phase of this case which transcended the boundaries of the immediate problem. The evidence at the trial, if Your Honor will recall, was totally focused on the various incidents rising out of the Veney manhunt. There was no testimony from anyone whatever in any way unconnected with the Veney manhunt:. There was no testimony from other householders that in any way had any connection with the Police Department other than the Veney case. As I said before, the instant case is unusual, if not unique in the annals of law, and I am quoting now from page 5 of the first interim brief. THE COURT: There is a difference between the case being unique and the facts which give rise to it being unique. As I understand it, the plaintiffs agree that it is a unique case. There is no question about that, but of course, they say that the facts are unique, the facts are unusual perhaps, but something which they say is a practice of the Police Department in roughly somewhat similar situa tions . MR. MURPHY: There is no evidence, Your Honor that there is a practice. The evidence relates itself and 1 •> 2 4 5 <i 7 S <) 10 11 12 12 14 15 1<> 17 18 10 20 21 22 22 24 25 1056 limited itself to the Veney brothers situation. We weren't thinking in terms of anything beyond that, and the focus was on the Veney brothers'whereabouts, and then the pitch began to change. We feel that we knew the boundaries before, and unless the boundaries are the same as they were before, and they didn't change this is where the case really is, and then it becomes somewhat of an abstract proposition of law without any evidence to indicate what the general, and I use the word to emphasize what the general practices may be. The plaintiffs have sought to characterize the issue on page 12 of the second memorandum as to whether Baltimore, whether in Baltimore Commissioner Schmidt and his men are under the law or whether Baltimore is a police state and they are the law, to paraphrase Mr. Justice Jackson in the Johnson case in 333 U.S. I think the statement is dramatic but it is grossly unfair because first the plaintifi admit on page 5 of their third memorandum that there are cases holding that police can arrest one and may enter upon with probable cause anyone's house without a search warrant. In that same memorandum they say that those cases are wrong and they will show in subsequent memorandum how they are wrong. THE COURT: Which memorandum is that you are referring to? 1 ■> :l 4 5 (i 7 S !) 10 11 12 HI 14 15 1<» 17 18 1!) 20 21 22 28 24 25 1057 MR. MURPHY: In the third memorandum, Your Honor, on page 5, they hold, they recognize the existence of these cases, and they feel they really haven't had a constitutional airing, that perhaps the blind follow the blind, and it's the beginning of the second paragraph, Your Honor, where they say that plaintiffs concede that a number of cases have assumed or held without reasoning that a search warrant need not be obtained where the object of the search was a person for whom an arrest warrant is outstanding and when the police have probable cause to believe that the person is in the home, but the proposition advanced by these cases has never been adequately contested by a fact situation comparable to the instant one where searches have been con ducted without search warrants and entering homes of individuals totally unrelated to the objects of the search, and then in a footnote they say that in a later memorandum counsel for the plaintiffs will analyze the facts and reason ing of these cases. There has been no real analyzation of these cases or effort to show other than perhaps a very general contention that they are wrong, but in any event we feel that the police are either under the law or they are a law to themselves, they say, but the police were following the law from the beginning and they were following the law laid down in the Henson case and the Waynser case and the case decided by Judge Sobeloff. 1 •> 2 4 5 (> 7 S !) 10 11 12 12 14 15 10 17 18 lit 20 21 22 22 24 25 1058 THE COURT: Just a minute. Let's have that. The Henson? HR. MURFHY: Waynser case, a case by Judge Sobeloff. THE COURT: Let's have it. The Henson? HR. MURPHY: The Waynser case, which was tried by Judge Sobeloff when he was Chief Judge, which is 202 Maryland, referred to in our brief. That is the case where the principle was recognized by Chief Judge Sobeloff when he was Chief Judge of the Maryland Court of Appeals, and the predecessor of that case, and all of these cases, of course, recognize the principle, and the only thing really in question was whether or not they had to knock on the door and announce their purpose in requesting admission. Of course Your Honor recalls the evidence in this case, in every case the police knocked on the door, and in every case they announced their mission, and of course whether they announced it before they had their foot in the door or in the vestibule is a question of fact, but it isn't a question of the police announcing their presence or breakit down any door in any case. THE COURT: You mean where there were people, where there were people there,they went in through the window out in Walbrook, I think. 1 •> :i 4 7> (i 7 S !) 10 11 12 i:l 14 ir> 10 17 18 10 20 21 22 22 24 23 1059 MR. MURPHY: That was in one case. THE COURT: Where the house was empty. MR. MURPHY: The police testimony was they had four anonymous calls in one day. When they arrived they knocked at the door, and they heard--no one responded, and they heard a shuffling within the house, and they opened a window which was unlocked and shouted in that they were polic and one of the policemen stepped in through the window. It's not the strongest case on probable cause, but judgment had to be made on those facts at that time by a police officer who is perhaps untrained in the latest principles. THE COURT: Yes. MR. MURPHY: And he went in. But that's the only case on the evidence before Your Honor where the police did not announce their purpose to anyone. Certainly the Fourth Circuit has remarked in the Love case cited in our brief which recognizes the proposition that police officers having probable cause to arrest without a warrant may enter a private house, and it's a similar situation. Ker stands for just that principle, and you will recall in Ker the fact, and that's perhaps the latest case, or somewhat of a series of cases by the Supreme Court, but nevertheless very basic facts that having probable cause 1 •) :{ 4 5 (i 7 s !) 10 11 12 12 14 15 10 17 18 l!l 20 21 22 28 24 25 1060 to arrest George Ker, they knew where he lived and they went into his house. They didn't knock on the door; they had no arrest warrants. They used a passkey which basically was equivalent to a break-in, and they went in and arrested him. Now, both the mayority and the minority opinion in that case recognized the very basic proposition that polic officers with an arrest warrant in this situation do not need a search warrant. In the Ker case much history was set out by both the majority and the minority opinions and they cite state cases, I believe one being McCaster vs. McCord, which is an old Tennessee case, and in reading that case, Your Honor, there can be no question that the police followed the law in this case. They were not or they did not arrogate to themselves any power that the law did not give them. They followed the law and they followed their Manual. The general order that was promulgated following a pretrial conference with the friendly assistance of the United States Attorney, was what we thought represente the law, and we still do. The second premise upon which the case was brought on behalf of the plaintiffs was racial motivation, a class action, and we were somewhat uninformed at the beginning as to what the class was, whether it was all Negroes of Baltimore City or all citizens of Baltimore City, 1 •> 2 4 5 (i 7 S !) 10 11 12 12 14 15 1(1 17 IS 1!) 20 21 22 22 24 25 1061 and perhaps we are in the alternative now; but I don't think that the plaintiffs really contend and certainly there was no evidence whatsoever to show that these searches were in any sense racially motivated. It said that the search was wide spread, and in only one place was there a discharge of a gun and that was in Anne Arundel County in a vacant area on Ordnance Road, if Your Honor will recall the testimony. Certainly I think it's entirely clear that without any shootings, without any break-ins, and only one who said he was patted down, and that's the case of the one who was in his pajama bottoms, but there was no basic interference with any of the occupants of any house. THE COURT: There was evidence of two pattings down, because I think the officer conceded that he patted down the boy in, I think, in the Sheppard house. MR. MURPHY: I think at the time they did that Your Honor, they had in mind the Charis case more than they did the Veney case. THE COURT: That's right. MR. MURPHY: Because that was a little differs situation than the case we are talking about. THE COURT: Yes. MR. MURPHY: But certainly there is no evidence whatsoever that I am personally aware of and there does not seem any question at all with respect to this claim 1 ■) :{ 4 5 (i 7 S !) 10 11 12 i:i 14 15 Ki 17 18 10 20 21 22 28 24 25 1062 with respect to this class type argument because there is no evidence whatsoever to support any racial motivation, and there is no class racial argument because, as I say, there is no evidence to support any racial motivation. In fact, they entered more Negro homes than white homes, but I think that is certainly due to the fact that they were looking for Negro defendants. The question that we have, and of course, if there is no probable cause in any of these cases then there i no point and then you have the question of the Constitution involved, but you get into an area where the probable cause is a matter simply of a factual situation, and it’s better in some cases than in others. You recall the Eutaw Street place, Your Honor. That was close. You saw some of the others that weren't close at all, where the police were simply relying on consent The idea of the anonymous tip, law enforcement agencies throughout the country have worked very heavily on anonymous tips, unreliable tips, unreliable informants, reliable informants, and they feel that they have a duty to investigate anything other than is patently absurd. I think perhaps, as we point out in our brief, there is a tremendous police problem involved in many of the leads that they had, and they did a tremendous job with as many leads as they had, and some officers, other officers ha\ 1 •> :t 4 5 (i 7 S !) 10 11 12 14 14 15 10 17 18 1!) 20 21 22 24 24 25 1063 better judgments than other officers, and it's pretty difficult to roll up the Police Department in one bundle and make them all think alike; they don't, and to fashion a decree of any kind to grant injunctive relief is a very difficult thing where you have to take into consideration a lot of subjective factors, and anyone can make a mistake in judgment which would mean that they could be responsible in a contempt citation. But the broader question that is involved with respect to the constitutional guarantees and the police state and 1 think that what is perhaps what is advocated here is a policeless state where the police are impotent to act, that they can't leave the station housj unless they have probable cause that has been certified by a detached magistrate in a situation that perhaps demands speed. How the police would investigate a situation of this character where certainly many of the ci _ ens were most anxious that the individuals sought be apprehended, and if the police could not move, if they could not go up and knock on the door and seek entrance, they just couldn't do anything at all, if they could just lie around and look at a house or sit around and look at a house for two or three days or go up and down the alley without making some sort of a move, I don't know how the police could investigate proper!. Now, it's true that it's a pretty difficult 1 •» :t 4 5 (i 7 S «) 10 11 12 1.5 14 15 I(i 17 18 1!) 20 21 22 28 24 25 1064 situation to say that there is consent when there are machine guns and rifles and guns staring at the householder's face when he opens the door, but I think it is a very dangerous thing to advocate that they investigate these leads, that when they do it they do it unarmed. The officer sitting in the radio car, as Your Honor knows, he is sitting there and he receives many calls during the course of a night, totally unconfirmed that some body is breaking into a house or there is trouble there, and he goes up and knocks on the door and he has a gun and goes on, but he doesn't know what he is going to find on the other side of the door. There is no real problem, and he doesn't know anything that is happening in the house other than the fact that the radio dispatcher requests that he go to that house because perhaps some neighbor has called says that there is trouble. I am afraid that if we carried that type of analogy to its logical end that certainly the police officers in carrying out their duty would be totally impotent, that they would be basically slaves to a doctrine that is totally unprecedented, and I don't for a minute suggest that in that situation that we have here lacking probable cause and lack ing consent, police had any right to do what they did. The police officers felt that they had probable 1 •> :( 4 5 (i 7 S !) 10 1 1 12 12 14 15 1(1 17 18 1!) 20 21 22 28 24 25 1065 cause, that they didn’t need a search warrant, and if they hac the law supported what they did. Now, we indicated earlier, Your Honor, that as 1 was said, that this was an unusual and unique case, and it's now over and the individuals who were sought have now been captured, and the relief that was initially prayed for was to en - stop and/join this Veney manhunt of the Police Department of Baltimore City. THE COURT: Now, wait a minute. Was that it? It was a little broader than that, wasn't it? MR. MURPHY: It's a little broader, Your Honor, but I don’t think it was intended to be. THE COURT: Well, what point are you making? Certainly, the prayers literally are broader. "Wherefore plaintiffs pray that this Court advance this cause on the docket in order to have a speedy hearing of this action according to the law, and after such hearing grant plaintiffs and members of their class similarly situated a temporary restraining order, a preliminary injunc tion upon final hearing and permanent injunction enjoining Bernard Schmidt,"and so on with respect to active participa tion," from continuing or resuming the practice of making unlawful entries and searches of the homes and persons of the plaintiffs and those similarly situated without lawful search warrants or other lawful cause in violation of the Fourteenth 1 •) 2 4 5 (i 7 S !) 10 11 12 18 14 15 1<> 17 18 1<> 20 21 22 22 24 25 1066 Amendment of the Constitution of the United States, and secon from harassing, threatening," and so forth, and next"from combining and conspiring,"and the Veneys don't appear in any of the prayers. The prayers are very broad. MR. MURPHY: Well, you have an eight page discussion of the Veney manhunt, and the prayers, you can't read the prayers in a vacuum, but you have to read the prayet in connection with the case which is at hand, and the basis of the case, as I understood it, that came before the Court was limited basically to the Veney situation, and that is what it was intended to, as I understand it, and if that is not it we get into a very broad speculative area of police practice, and certainly there is no proof at all as to how it differed from the Veney situation. THE COURT: Well, certainly paragraph 8 of thi complaint emphasizes the Veneys. On the other hand, I thinl; it may well be that that was what was in mind when the complaint was originally filed; but as the case developed the plaintiffs made it clear that they were seeking a broade^ injunction, and they didn't wait until the Veneys were captured before they made that suggestion. It seems to me that during the evidence and during the argument that the plaintiffs indicated a number of times that they were seeking a broader injunction. 1 •) :t 4 5 (i 7 S !) 10 11 12 l . ' l 14 ir> l(i 17 1H 10 20 21 22 20 24 25 1067 MR. MURPHY: Well, Your Honor-- THE COURT: The question of fact that they weri dealing with the Veneys is a matter to be taken into consider; tion on a question of a preliminary injunction and also on an; question of final determination. MR. MURPHY: Well, we could say that if it is a process of the question of running beyond the Veney brother case, Your Honor will recall after the order was issued, basically the searches began to drop off to nothing, and time took care of that, and there were two or three searches, and Your Honor will recall that there were search warrants, and t police went out and got search warrants. THE COURT: After the order there were only two. It's my understanding and my recollection, the evidenc is that after the order there were only two searches and both with warrants, both with search warrants; but let me see. That's a matter of working out the dates. The order was issued on what date? Was it the 11th? MR. MURPHY: The general order was issued on January 11th, Your Honor. The point I am trying to make is that we have got to work into the area of the Court's discretion, and what I am saying that the evil, if there was an evil, it has disappeared. 1 • > 4 4 5 (i 7 S !» 10 11 12 14 14 15 10 17 18 1!) 20 21 22 24 24 25 1068 THE COURT: Just a minute. There was one search on the 11th and one on the 12th, I believe, without a warrant. HR. MURPHY: Your Honor indicated some responsibility of perhaps a responsible approach to this situation after the order was issued in recognition of the argument presented by the plaintiff that they seek search warrants, but as I recall the warrants, one of the search warrants was granted on an anonymous tip. How that could be I don't know, but that is what it was, as I recall the papers but apparently it was granted, and I believe the argument has been that it's better to take the situation to a magistrate and let him decide that and perhaps that might satisfy my brother, but it seems to me that probable cause is probable cause whether it's a magistrate acting or a police officer, but of course you have different kinds of situations where a magistrate issues a warrant based upon what he feels to be probable cause. An anonymous tip is not in and of itself a probable cause, as Judge Chesnut seemed to indicate in that particular case that was referred to, the Ruffner case, but in any event, I am indicating that the police did seek search warrants after this order. The problems diminished or became practically no problems. The evil, if there was any, had disappeared, 1 •) :t 4 5 (i 7 ,x <) 10 11 12 18 14 15 i < ; 17 18 10 20 21 •>2 2.1 24 25 1069 and 1 am saying to the Court, I suppose, that this is an unusual and unique case and it's now over, and it's the Court's discretion to deny an injunction in the public interest which would seem to be apropos in this situation particularly where there is no showing in this Court that thj is a general practice and it would be pure speculation to think in terms of this situation arising again, and there are no additional complaints along the lines of the present complaint. In any event, if there is an injunction to issue, certainly we feel that this being a class action it should be limited to these plaintiffs. They say that it is a class action and that they are, that it is in one of their various memorandums, but we don't feel that this is a case such as the Whiteford case, wherein that case, as I recall, Your Honor, it was clearly identifiable with a racial class against a question <: federal discrimination in a racial area, where it was a situation that had an effect upon the entire class, and it is not a question where it would apply to all members of the class but we feel that if an injunction is to issue that it should be limited to the plaintiffs. At the same time I know and this is referring to the second memorandum of the plaintiffs, they set forth what appears to be a suggested decree which recognizes, and 1 •) :( 4 f> (i 7 S !l 10 11 12 i:l 14 1.7 Hi 17 18 10 20 21 •>2 20 24 2.7 1070 it was with reference to a situation where the police officer= did not have search warrants, but if they have probable cause, and the probable cause, I believe, they seek is to pin down in their decree the actual personal knowledge of the police officers that the men are in that particular house. That is clearly an impossibility, and it would seem to me that that decree if that would be a conclusion it would run counter to the applicable law, as I suggested before, and the Maryland law is not very clear, and does not go this way with respect to the constitutional guarantees which are implicit in Ker, but it would run counter to all the law on this situation. THE COURT: Well, if it is a spurious class action, as I take it the plaintiff concedes, are they entitlec to a declaratory judgment? MR. MURPHY: They haven't asked for one, Your Honor; it's a suit for an injunction from the beginning of this case. THE COURT: They don't even have "further and other relief," do they? Yes, "other and additional relief." That is right. MR. MURPHY: Your Honor will recall at the very beginning of this case when we discussed this case in chambers that there was no question that the Police Depart ment of Baltimore City agreed to be bound by the confines of 1071 i :t 4 (i i s !) 10 11 12 i:i 14 1.') 1<> 17 IS 10 20 21 the Fourth Amendment as applicable to the States in the Fourteenth, and any decree that was fashioned couldn't run beyond that. Here again we feel that the case now is moot, as I said before, and we feel very strongly that it is moot, and if the case goes beyond that into the area as is now suggested by the plaintiff to include in general police practices, the question of the standing perhaps of these plaintiffs becomes something new in the process in the interest of the representative householders who were injured in connection with the Veney manhunt and only the Veney manhunt. There's no showing that any of these plaintiffs were at any time ever subjected to any police activities apart from this particular factual situation which has been characterized as unique in the annals of the law. We would feel, Your Honor, that there should be no injunction and that within tne confines of the particular case at hand there should be no injunction. THE COURT: Mr. Marbury and Mr. Eney, I will be glad to have the benefit of your advice. 22 24 STATEMENT OF AMICI CURIAE MR. MARBURY: If Your Honor please, Mr. Eney, Mr. Coughlan and I have discussed this matter at length 1072 :{ 4 .) (i s !) 10 11 12 12 14 15 1<> 17 IS 19 20 21 22 24 2;) yesterday and Friday, and it was agreed that I would make a statement on behalf of all three and if they wish to they would supplement it as it seemed appropriate. Mr. Coughlan is still tied up in a case before Judge Northrop, and I had hoped to get him, but he is not here. I think perhaps we may be helpful to the Court j if we break down our discussion into three elements, and perhaps we are going at the thing a little backwards because we think that standing might be the first step; but it would seem to us that standing may depend upon the solution of some other questions which ought to be discussed first. The first issue there seems to exist between the parties here is the question, and of course the most important issue is whether or not the police were seeking to arrest a man for whom they had a warrant or for whom they had valid grounds to make an arrest,may enter a property for the purpose of finding him where they have reasonable grounds to believe that he is there or he may be there. THE COURT: Did I state the question? That is essentially question one, isn't it? MR. MARBURY: Yes. THE COURT: Or it might be modified. MR. MARBURY: Now, certainly, it seems to be assumed that they have that right in the cases that we have read, as is admitted by counsel for the plaintiffs. There 1 ') :? 4 f> (i 7 ,s !) 10 11 12 12 14 1.") l(i 17 IS 1!) 20 21 •>2 22 24 2”) 1073 are specific cases so holding, the Massachusetts case and others in the State Courts. The federal cases which we have read in the lower federal courts certainly seem to us at least by implication to assume the existence of that right. As Your Honor is well aware it is quite normal in these cases where an effort is made to suppress evidence that there has been a complaint either under invalid search warrants or without search warrants for the Government to offer as a second line of defense, so to speak, that the search was made pursuant to a valid arrest, and even admitting that the search warrant was invalid or that there was no search warrant obtained, if there was a valid arrest then the search was proper and the evidence cannot be suppressed. Well, now, there is an implicit premise there, and that is that even without the warrant a search may be made for the purpose of making a valid arrest, and if incidental to that you discover narcotics or other property, it is all right. This repeatedly comes up. No one seems ever to have challenged in any of those cases the proposition that where it is valid to arrest a man you have a right to enter the premises and search for him. Now, that proposition is challenged here on the ground that the Fourth Amendment forbids it, and that it 1 •) :t 4 7 (i 7 s !) 10 11 12 12 14 1.7 Hi 17 IS 10 20 21 22 22 24 22 1074 would be ironical to say that you cannot search for goods but that you can search for criminals. For my part I say that it is ironical. I see a real difference in the reasonableness of a search where you are looking for a criminal for whom you have valid grounds to arrest and to search a premises specifically looking for goods that may be evidence of crime. At any rate I find nothing in the cases in the Supreme Court or in the federal cases or in the state cases that casts any real doubt on the proposition that the police officers may enter the property, that they may enter the property and if necessary without the consent of the owner for the purpose of searching where he has a reasonable basis for the belief that the man may be there. The word "probable cause" was used, and 1 think there is a little something there that they are apt to confuse somewhat because we use probable cause in connection with the issuance of search warrants, not in connection with valid arrests, and there the text may have a different meaning. For example, let us suppose that a man for whom the police have a warrant of arrest is seen running into a courtyard from which there is no exit except one and he hasn't emerged. The police come along, and they are told, "He went in there," and there may be, say, eight 1075 houses in that courtyard. Now, we can't be sure that he is 1 in any one of those houses, but you have reasonable grounds •) to believe that he is in one of them. :iA I would suppose that under those circumstancesw the police might properly enter any one of those houses to 5 look for that man. (> What action would be reasonable in a particular 7 situation is bound to turn on the immediate facts, and it s involves to some extent the exercise of judgment. This !) undoubtedly does possibly result in a situation in which 10 officers lacking in good judgment may make mistakes; but on 11 the basic question whether or not as a reasonable man they may enter, we agree with the State.• Now, I think that it is apparent in this case 14 of the Veney searches there were illegal entries, that there ir> were entries made where there were no reasonable grounds to in believe that the Veneys were there. 17 I think on the question of the basis of entries 18 on an anonymous tip Judge Chesnut's ruling seems to be 1!) pretty definite; and I gather from what Mr. Murphy just said 20 that he wouldn't dispute it, that an entry simply on the basis 21 of an anonymous tip without consent would not be a lawful • entry. 20 THE COURT: Ever? 24 25 MR. MARBURY: Well, I think, I don't know this, 1076 don't know enough to say anything in terms of "ever". THE COURT: Yes. MR. MARBURY: But in general I would say unless there was something else that could tend to corrob orate it I think it would be a difficult thing. That does not mean that the police could ignore anonymous tips. 1 think we are all agreed, I think we all know that in many instances dangerous criminals have been captured on the basis of anonymous tips. THE COURT: But there must be some corrob oration to corroborate the facts you say? MR. MARBURY: Well, I would think that they would certainly want to investigate. The question is whether the investigations can go so far as to involve a forcible entry because if they have the right to enter without consent they have the right to enter with force. THE COURT: That is right. MR. MARBURY: By means of reasonable force, but whether they can go so far as to enter and make a forcible entry on the basis of nothing but an anonymous tip, well, I certainly wouldn't start with a presumption against it, and in this particular instance there have been such apparently on this record, from the facts it now seems to be admitted, that there are such cases. I think we are all agreed with respect to that, to that point. 1 ■> :i 4 5 (i 7 S !) 10 11 12 12 14 15 Hi 17 18 1!) 20 21 22 28 24 25 1077 Now, we haven't undertaken to try to define the relation of each of these individual searches, which one seemed to us to go beyond the mark and which ones do not, but I would say that we would say, and I think Your Honor did, that there have been a substantial number of cases in connection with the Veney search in which the police went beyond the mark. Now, granted that is the situation, we come to the second aspect of the case. THE COURT: Hay I suggest one question? MR. MARBURY: Yes, sir. THE COURT: You said that you had read some federal cases and Supreme Court cases. Do you have a list of them? MR. MARBURY: Well, they have all been cited to Your Honor. I think, there is Ker. THE COURT: Yes. You have nothing to add? MR. MARBURY: We have nothing to add. I think not, that we have nothing new to add to. them. We have no cases that have not already been called to Your Honor's attention. Now, we come to the question, and I would like fto say before we get to the next point, I might say that Your Honor referred to the Henson-Ker problem. I take it 1 •> 4 4 5 (i 7 s !) 10 11 12 14 14 1.7 i<; 17 IS 1!) 20 21 22 24 24 25 1078 that that issue isn't really directly raised here? THE COURT: No. MR. MARBURY: No attempt has been made to raise it in these cases because in general the police did make it clear what their purpose was, although in some cases they seem to have gotten their foot in the door before they did so. Whether that is a compliance with the rule which the federal courts apply to federal officers under the— Your Honor mentioned Judge Watkins, and Judge Winter also, I think, had a case, the Sims case in which he discusses with great care the Henson case and the Ker case and goes into the whole business and points out the difference between the state rule and the Fourth Amendment rule and the rule which is applied in the Federal Courts. THE COURT: That is Sims? MR. MARBURY: Sims, yes, sir. THE COURT: I think that must be in the last few months. MR. MARBURY: Yes, it is a very interesting and very carefully written opinion by Judge Winter; but 1 do not understand that there is any confusion tiiac there is any general practice on the part of the police of the Henson rule, of the rule laid down in the Henson case, and actually there isn't even an issue here, as I understand it, on this record 1 •> :{ 4 f> (i 7 S !l 10 1 1 12 12 14 15 l(i 17 IS 1!) 20 21 •>2 22 24 22 1079 as to whether there is any general practice of the police in not complying with the federal law that would be applied. There may have been one or two instances in these cases where they didn't comply, but I think I understoo Mr. Nabrit to say in his argument here that that issue, that he was not testing that issue, that is noncompliance with the requirement for notice of your intention. His point was that they did not have the right to make the entry unless they had a search warrant or consent and he said, and I think 1 woul. agree with him, that the circumstances of a great many of these cases could not possibly be reasonably regarded as involving consent. I think we would agree with that that in a great many of these cases on the facts, as we understand them, there was no such consent as would justify an otherwise illegal search. Now, that brings us to the question of whether or not this Court should grant relief and whether these plaintiffs have standing to invoke it. The two questions really seem to us to be so clearly interrelated that they have to be discussed together. These plaintiffs differ from other citizens of Baltimore only in two respects: One, that they are Negroes, as some of the otner citizens, the majority are not; and two, that their houses have been searched in the Veney search, whereas mine has not and other citizens have not. 1080 Now, first as to the fact that they are Negroes, does not give them any special standing. And I think I agree with the State that in this case on this record that it does not. There is nothing to indicate that there was a discriminatory search of Negroes' homes. The fact that substantially nearly all the searches were Negro homes is certainly not surprising when we consider the fact it was a search for the Veney brothers, and there is no evidence that they received information of any kind whatsoever to indicate the presence of the Veney brothers in any white homes. So the fact that they didn't search certainly doesn't indicate that they were-- THE COURT: Is it the fact that there were no white homes searched? MR. MURPHY: There were a few, Your Honor. THE COURT: I thought there were a few. MR. MARBURY: I don't believe, Your Honor, that there is any evidence that in any case that the police had received the same kind of information on which they acted in searching Negro homes and then they did not search white homes. Now, if there were you might have some basis for arguing discrimination. I don't remember any suggestion of that sort that they made a difference between the treatment. For instance, if they got some information that the Veneys were hiding in a house in Guilford and they didn't 1 ■> :{ 4 5 (i 7 S !) 10 11 12 12 14 15 l(i 17 18 10 20 21 22 22 24 25 1081 do anything about that; on the other hand if they got a tip that he was hiding out on Pennsylvania Avenue and they sent their flying squad there to make a search. That is not this casey as I understand it. In the absence of any evidence of that sort and in the absence of any evidence that the practice followed in this case is not followed in the case of where they are seeking white criminals, I would think that the issue of equal protection falls to the ground in that fact that these plaintiffs are Negroes would not give them any special standing, and that the cases where Negroes have been permitte to vindicate the right of Negroes as a class where there is a claim of denial of equal protection would not be relevant. Then comes the fact that their homes have been searched. Is that especially significant? Is it more they likely for that reason/will be searched than that others will be searched? I would think there was no logical basis for concluding that, and as Your Honor has remarked, lightning is not likely to strike twice in the same place, and I would suggest that the Police Department is not likely to be searching these homes under such circumstances as they probably would be with respect to many others. So, it doesn't seem to me that the fact that their homes have been searched would give them any special claim in this case to ask for relief. Indeed, I do not 1082 understand that they claim that because they are asking for relief of people whose homes were not searched on the theory that they are in the same class. So it comes down to this, as it seems to us, would any householder in Baltimore be entitled to ask this Court for an injunction on the basis of the facts set out in this record? Now, the argument that was made here this morning is that the record indicates that there is a pattern of police activity in Baltimore indicating that they search, that they conducted illegal searches with regularity, that it is not only when they are engaged in the Veney manhunt or a manhunt for a police killer but that as a matter of routine, Your Honor, the police in Baltimore engage in illegal searches. Now, part of the basis for that has been the allegation that they followed the Police Manual and the rules put out in the General Order. That, of course, we have already dealt with in indicating our view that that is not illegal, to follow the rules of the Police Manual and the General Orders. The question then is, does the evidence in this case indicate that they have a regular practice of illegal searches within the rules of law as near as they can be adduced or do they habitually search or without reasonable 1083 l 4 li i s !) 14 1.') 1<> 17 18 lit 20 21 22 24 25 cause to believe they were there? Did they habitually violate any of the rules that were believed to be applicable? Your Honor asked Mr. Nabrit that question, and I understood him to say that he relied on the fact that Lieutenant Hewes had said in effect or testified in effect that the search that he made was on the basis of anonymous information and the meeting with a man outside, who didn't identify himself, but who he said had given information, that this was the kind of thing which he was sure would have been approved because in fact he would have been derelict in his duties if he did not act on it. Now, on the basis of that, it is argued that Your Honor would have to find that as a matter of routine houses are searched without probable cause in attempting to arrest wanted persons accused of crimes, felonies without consent, without probable cause. I am not sure that if that is all the evidence to support this finding that Your Honor would be warranted in making it. THE COURT: Well, I don't think that Mr. Nabrit admits that that is all the evidence on that. MR. MARBURY: No, he said he wasn't, but as I understood him he said in effect that he thought he hadn't organized his argument that way and ne hadn't marshaled the 1 •> 2 4 !) (i 7 ,s !) 10 11 12 12 14 15 1() 17 18 1!) 20 21 •>•) 22 24 25 1084 evidence in the way that he thought it could be marshaled. THE COURT: Well, 1 think you had better argue it in the alternative, if the Court should find that— MR. MARBURY: Yes. THE COURT: And 1 don't feel prepared without having the testimony written up to direct a verdict, that there wasn't legally sufficient evidence to find that that was the practice of the police, and I am not prepared to make the finding that it is the practice. 1 would want to look over the evidence before making any such findings one way or the other a little more carefully than I have had a chance to do; so, I suggest you argue it in the alternative. MR. MARBURY: I certainly intended to do that. Your Honor. As I say, there may be more evidence in this record from which a pattern of searching without probable cause can be deduced or reasonably incurred, and 1 didn't hear the evidence; all I know about it is what I have heard in the statements made in Your Honor's hearing and what has been stated in the briefs, and from what has been said here, he said he is not marshaling the evidence for that purpose. But assuming that there have been a number of cases in which searches were made without probable cause, we have this situation, as I understand it: The police acting on the advice of the Attorney General as the Police Commissioner has said that they are not to search without 1085 •> i ■> n 7 S !) 14 15 i<> 17 18 1!) 20 21 22 24 probable cause. On the other hand, there is a practice, as to which we will assume there is evidence in the record that they have in the past routinely done so. THE COURT: It is not routinely. I don't know that the claim is that it is routine or habitual; but I an think the claim is that it is more than/incident to the Veneys' arrest and that it is at least occasional and perhaps more than occasional and less than habitual. Mr. Hughes is nodding and I am not sure whether he is nodding in agreement or opposed. MR. HUGHES: In agreement, yes, sir. MR. MARBURY: All rignt, sir. I will take it that way. I was stating it as strongly as possible for them because Mr. Nabrit did use the word "routinely". THE COURT: Well, I don't think the Court should find "routinely" or "haoitual" that they violated it. I might find that it was done more than-- MR. MARBURY: Well, the question is, what in effect we have here is that a householder comes into the Court and says that the Police Manual may be all right on its face and the Police Order may be all right on its face, but they don't say that; they deny that, and I think on that point we disagree with them. It may be all right on its face but in practice 25 it is not applied; they do not, they do search without probable 1 ■) :i 4 r> I) 7 ,s <) 10 11 12 10 14 15 111 17 18 1!) 20 21 22 20 24 25 1086 cause and we want this Court to enjoin that because they have searched in our cases without probable cause, and we have produced evidence of a number of cases that they have searched without probable cause, and on the basis of that and on the basis of the fact that there was other evidence that these searches were not unusual, now, we ask for an injunction. Now, that brings us up against this question, and as I see it, I myself might just as well bring this suit for if they are trying to vindicate the rights of others the assumption would be, of course, that others are equally free, as 1 say, the fact that they nave been searcned does not seem to me to give them any special rights to vindicate the right that I wouldn't have unless tnere is a prooaoility that they will be the subject, more likely to be the subject of future searches than I will be, and I do not know that they have shown that. So that the real question, it seems to me, is whether or not any citizen or any householder of Baltimore has the right to come in here and say on the basis of this record that "We think the Court should issue an injunction directing the police not to search without probable cause, and since they may not do that, they can be made subject to contempt if they violate it or else define it in more itelaborate terms. 1087 4 :i (i S !) 10 11 12 12 14 ir, Ki 17 18 1!) 20 21 22 24 Now, we have not been able to find any cases in which the Court has gone that far in exercising its powers of injunction to lay down rules and find under circumstances of that sort or a general sort, to lay down what is in effect a set of police regulations. We think it would be very difficult to do, and we think that proDaoly the most that the Court could do would be to put in the injunction what is already in the General Order and then throw the burden on the Police Department or the Police Commissioner of a contempt proceeding in case they made the same sort of mistake that they have made here. THE COURT: When you say in the General Order, are you talking about the order of January 11th? MR. MARBURY: Yes, sir. THE COURT: Or something which is in the Manual? MR. MARBURY: No, I am talking about Police Commissioner Schmidt's order. THE COURT: Well, now, let me be clear: Is that order made of the same continuing effect that other orders that have been issued, is it your understanding, or was that limited in some way to the Veney search? MR. MURPHY: I think I can answer that, Your Honor. All general orders of the Police Commissioner continue in effect until revoked. 25 1088 l •> :{ 4 .) (i i s 0 10 n 12 1.4 14 IT) 1<> 17 15 10 20 21 24 24 25 THE COURT: All right. MR. MARBURY: It is very difficult for us to see how Your Honor could undertake to frame a detailed statement as to what could or could not be done. We are not aware of any instances in which a court of equity has so acted with regard to the police force. Your Honor has in mind, I am sure, the cautions which Mr. Justice Cardozo stated in Hawkes vs. Thomas, in which he points out the hesitation that an equity court should have in interfering with the general conduct of a state officer acting under color of office in performing his duties, and 1 would think that this Court in its equitable discretion would not therefore feel justified in undertaking to do that. THE COURT: Before you go on, just give that to Mr. Nabrit so that he can look at it over lunch. MR. MARBURY: And as far as standing to ask for such an injunction is concerned, as 1 say, it seems to me that when you talk about a class action it doesn't really it, add anything because here if we are right about / if the class would be every householder in the City, 1 do not understand that in a class action you can get relief for people who couldn't get it for themselves if they brought suit. Maybe I am wrong about that, but that has been my impression. THE COURT: If they can get relief for people who could get it for themselves if they had done so. 1089 i 4 .) (i i S 10 11 12 12 14 15 1<> 17 IS 1!) 20 21 21 24 25 MR. MARBURY: That is what I have always understood. There is one rather curious case brought in the District of Florida in which a Negro who had applied to a college down there had been turned down, and he applied on his own behalf and also on behalf of others. He brought a class action to be admitted to the State University. By the time the case came up for argument he was no longer eligible for one reason or another. 1 don't know whether it was age or draft status or something like that; but the court held that the other people, the other members of the class were eligible, and went ahead and granted injunctive relief although the plaintiff himself was no longer entitled to it. But it seems to me reasonably clear that if the plaintiffs would not themselves be entitled to relief and other taxpayers would not be entitled to relief, you can't add up a lot of zeros and get anything but zeros, and therefore that there really isn't in this case the broad question as to whether or not a taxpayer, myself, or anyone else in this room who is a householder would be entitled to this kind of injunction, and our argument says that we have found no case that goes to that length, and we don't see that the fact that they are suing on behalf of a class adds to it or detracts from it in any way. If they 1090 i :i 4 .> <i < ir> it; 17 IS 1!) 20 21 22 22 24 25 are entitled to it then all the others in the class, and I don't care how big the class is, I would tend on that point to perhaps, well--let me say this that in these cases, racial cases, it has been clearly settled that you can sue on behalf of not only yourself but others similarly situated under Section 23, but my feeling is that it ought not, that racial cases in that respect are not peculiar. There are some of the racial cases that are peculiar because in a segregation case, for example, where a man applies on his own behalf and on behalf of others to be admitted to a school, and the argument is made, well, "He is entitled to come in but he can't vindicate the rights of others," he says, "Well, it won't do me any good for me to be the only Negro in a school, it's still in effect a segregated school, and therefore I have a special right to vindicate the rights of others," and in that respect some of the racial cases are peculiar. But they are not all. That aspect does not occur in all of them, and I would say that we are in agreement that in general the racial cases are not different from other cases, in effect that many of them would be applicable here as indicating the wide scope of 23. THE COURT: Mr. Marbury, if the Court should agree with the plaintiffs that the Manual, the Police Manual is wrong and that they must get a search warrant, wouldn't 1091 the Court, shouldn't the Court issue an injunction in that situation, or what should the Court do if the Court felt that the entire practice, the regular practice was wrong as distinguished from what we have as an occasional practice? MR. MARBURY: Then you have a situation in effect which would be this: The Police Commissioner or the Police Department has said, "We propose to search houses without warrants in violation of the Fourth Amendment when we are looking for persons whom we want to arrest for crimes for whom we have warrants of arrest." The question is whether or not under those circumstances that any householder would be in a position to come in and say, "it might be my house." THE COURT: Yes. MR. MARBURY: Or whether he has actually to wait until they have searched his house. Our own feeling about the matter is that as far as we know the courts have not gone quite as broadly as that; they have gone this far. There is the Bailey- Patterson case, in the Fifth Circuit, which has been cited where the court, the majority of the court was satisfied that if the Negro plaintiffs should try to ride on these buses or at least on certain seats of the buses that they would be arrested, and the court said, "You don't have to 1092 go and get yourselves arrested. The announced purpose and intentions are so clear and we are satisfied as to what they are going to do, and you are entitled to an injunction not merely with respect to prevent them from treating you this way but also with respect to any others in your class this way." That goes about the furthest of any case that we have found. But it really comes down to this that there is a certain question of degree involved. If the Police Commissioner says, "I am going to search every house in the 1200 block of McCollough Street although I have got no cause to do so, no legal right to do so," I would myself feel that any householder in the 1200 block of McCollough Street could come in and ask for protection against that search. If he says, "I am going to search every house in Baltimore if an occasion arises where I think it is necessary without regard to the legalities," then the cases, as I understand it, sort of shy away and say, "Now, wait a minute, that may oe what he says, but we think it is too general and we have got to wait." I don't know, Your Honor; I would myself think that that was a very difficult proposition, if we have an announced intention on the part of the Police Department to violate the law and to make searches which violate the Fourth Amendment, and you so find, then I would 1 •> 4 il (i 7 S !) 10 11 12 1.! 14 15 10 17 IS 1!) 20 21 ■>2 20 24 25 1093 be inclined to think that there might be a basis for any householder to come in and say, "I want protection against this kind of search.*' Now, it is true that it may never happen that they may never get a tip which causes them to search my house, and it is a question of a risk, and so on. THE COURT: Well, you say it may be a question of degree. MR. MARBURY: Yes. THE COURT: That was rather the way I was looking at it, that is how serious you think the chance is or the evidence shows the chance is that the police will in the future with anything except by a mistake may deliberate! search a house on an anonymous tip without corroborating circumstances. Certainly some police are going to make mistakes, but is it going to be a frequent occurrence that police believing they have a right to do so, will enter houses without-~ MR. MARBURY: Without consent. THE COURT: Without reasonable cause. MR. MARBURY: And vjithout consent. THE COURT: And if so, what should the Court do, and this comes almost to advice as distinguished from— MR. MARBURY: Yes, sir. 1094 •> :i (l i s !) 10 1 1 12 18 14 IT) l(i 17 18 1!) 20 21 22 24 THE COURT: As distinguished from what advice and what policies the Court should follow. MR. MARBURY: That is right. THE COURT: Snould the Court issue an injunction, should the Court issue a pretty firm opinion in refusing an injunction, or should the Court just say, "not proved." MR. MARBURY: Your Honor, I think I can speak for the three amici curiae, the counsel in saying this, that it is our view that the Court ought to state that the evidence in this case shows a substantial number of legal searches in connection with this Veney matter; that the evidence does not warrant the issuance of an injunction on the present state of the record; and that the Court would not at this time undertake to lay down either by injunction or by declaratory decree regulations or guidelines as to how the police are to proceed; but that the Court is always open in any case in which there are violations of the sort that have occurred here or if there is any repetition of this by the Police Commissioner, that the Court is open to them to apply, and this record will be taken as the basis of action in such case. THE COURT: Now, that brings me to the next question. This is a case before the Court on an application for a preliminary injunction. 1095 i :i 4 (I s «) 10 11 12 1.4 14 If) l(i 17 15 111 20 21 24 24 2.) MR. MARBURY: Yes. THE COURT: The legal views that you have stated, if they should be adopted by the Court, lead to a dismissal of the suit on the ground of no standing, lead to a denial of a preliminary injunction, and leave the case open when you say that if there is any repetition that this can be considered it would be possible not to dismiss or the suit could be dismissed with such a warning if there is no standing, it couldn't be dismissed if there is standing, or the other way to do would be to dismiss the preliminary injunction. MR. MARBURY: Or deny it. THE COURT: And leave the case open. MR. MARBURY: To deny it. THE COURT: To deny the preliminary injunction and leave the case open to see whether there will be a repetition. MR. MARBURY: Well, I would be inclined to think, Your Honor, that that last would be about the way we were thinking: Deny the preliminary injunction and leave the case open. THE COURT: That is, you feel that— MR. MARBURY: You would say that on this as it now stands there is no sufficient justification for an issuance of an order, either declaratory or in any other 1 •) :t 4 5 (i 7 S !> 10 11 12 i: i 14 15 1<> 17 18 10 20 21 22 22 24 25 1096 form, but that in view of the fact that there are virtually admitted violations here, and in view of the fact that there is certainly some evidence that up to this point, up to the time this suit was brought, these officers thought that what they were doing when they were making legal searches was law, that you would have a reason to retain jurisdiction of this case, and let it go at that. THE COURT: Mr. Eney. MR. ENEY: May it please the Court, Mr. Marbury has so clearly stated the views of your three amici curiae that I do not think that any lengthy statement by me is either necessary or desirable. I would like to comment on just a few points, more by way of emphasis than anything else. Before I do that 1 perhaps should mention one thing that may be a very slight procedural disagreement, and that pertains to the last question Your Honor asked Mr. Marbury and he answered. I would question the desirability of retaining the case open on the docket merely from the point of view of orderly procedure in the Clerk's office and on the dockets of this Court. THE COURT: On what ground-- MR. ENEY: Because I do not think that any 1 •) :{ 4 5 (i 7 S I) 10 11 12 12 14 15 1(5 17 18 10 20 21 •>2 22 24 25 1097 good could be accomplished by doing it. THE COURT: On what ground can I dismiss it? MR. ENEY: Well, I think you have ample grounds on the basis that Mr. Marbury indicated. I think the purpose that he wanted to serve can just as well be achieved by a warning in the opinion because if circumstances should arise to make it necessary for Your Honor to act, what Mr. Marbury was suggesting was that you could give warning now, that you could act and would act on a preliminary injunction on the basis of the evidence that has been produced in this Court, and the Court, of course, would be amply justified in doing so. My only objection to the procedure is that this to me envisages holding the case on the docket open for perhaps years. THE COURT: Well, how could I act, how could I act in another case on evidence in this case? They perhaps would be different plaintiffs, and there might be a different defendant eventually. Eventually there would be a different defendant. MR. ENEY: You wouldn't be acting, if the Court please, in the other case on the basis of this evidence except to exercise your discretion to grant a preliminary injunction. If a request is made to you to grant an injunction at four o'clock in the afternoon, you have got to 1098 be satisfied that there is some necessity for it, and you cotjild consider the circumstances that have arisen in order to gran{ such a preliminary injunction subject to being resolved in a very short time on the establishment of reasons for it by evidence. I do not think that Mr. Marbury was intending to suggest to Your Honor that future circumstances, even if this case were held open, would be governed necessarily by evidence here. You would, of course, have to consider what the facts were at the time the new situation arose; so that whether you are keeping this case open or are considering it as part of the background of the new case you are nevertheless bound to consider the facts in the other case presented to Your Honor at that time. But that I suggest to Your Honor is a mere mechanical detail that Your Honor is much more familiar with than we are, and I shudder to think that any case stay open on the docket of this Court for an indefinite period with nothing ever closing it. THE COURT: Well, we have done it in some of these school cases where there has been an indication that the Court, I think in the most recent one in Harford County, indicated that the Court had stated its views, and in that one I think there was an injunction granted on one point. There have been others in which the Court has indicated its 1 •> :t 4 5 (I 7 s !) 10 11 12 12 14 15 i<; 17 18 1!1 20 21 22 22 24 25 1099 views and assured the school board will obey them but that the case may remain open for a reasonable time and then they could move to dismiss it. MR. ENEY: A reasonable time because in those cases, Your Honor, you were confronted with a situation where there had to be action within a rather limited time. There are other school cases, in one of which I appeared where Your Honor did exactly what I suggested. You dismissed the suit but with a warning that if circumstanc arose in the future requiring you to act you would act forthwith on an application for a preliminary injunction. Now, let me emphasize one other thing that Mr. Marbury covered in his statement. We have not sat throughout the case in Court and we have not heard the evidence; we have no transcript available to us. Our information as to the acts comes entirely from hearing the oral argument, reading the briefs, and more particularly from a rather extensive summation of the evidence which Your Honor gave to us some weeks ago. On the basis of that it seems to us clear that the police have been guilty of excesses in at least some of these searches, and I think all of us here very strongly feel that if the Court finds, as it has indicated to us it does find, that there are such cases that it should unhes itatingly and in very forceful language condemn it. 1 •> :{ 4 .") (i 7 S «) 10 11 12 i:i 14 ir> l(i 17 18 10 20 21 22 20 24 2.7 1100 Now, in the area of the precise point that was initially urged by the plaintiffs upon which Mr. Marbury has indicated clearly our views that there is no rule which says that when the police are executing an arrest either pursuant to an arrest warrant or without it they must under any circumstances have a search warrant to enter the premises to search for the person for whom they are seeking. I must confess that I have considerable qualms in one area due to the decision of the Supreme Court in the Frank case which was, as Your Honor knows, a five to four decision. Whatever it may be tomorrow or next week, I do not know; but I bring to Your Honor's attention the suggestio that the logical extension of the doctrine of the Frank case might suggest that here there could be no violation of the Fourth Amendment because the police were not searching for evidence of a crime committed by any of the householders whose premises they searched, or whether they were doing no more than the Health Inspectors were doing in the Frank case They were seeking to inspect the premises not for the purpose of finding evidence to convict any one of the householders or members of the householder's family of a crime of any kind. Speaking personally and only personally I would hope that the Court would not rest its decision upon any such grounds because I am quite frank to say that the 1 • ) 4 ”) (i 7 ,s !) 10 11 12 i:t 14 15 1<> 17 IS 1!) 20 21 •>2 22 24 22 1101 decision in the Frank case leaves me personally far from happy and I would hope that it would be severely limited in the future. But the Court need not go that far in the present case because it seems to be clear on all the authorities that at the present time up to now there is no indication that a search warrant is needed when the police are seeking to execute an arrest if the search is reasonable, and I emphasize, as well as Mr. Marbury, the necessity of usi the word "reasonable" rather than probable cause because the connotations of meaning can very easily lead one astray. What it comes to is that if the police are acting reasonably in entering private premises in order to execute an arrest they are acting constitutionally. Now, this gives me a great deal of concern in considering any suggestion that the police can never act on an anonymous tip or even a suggestion that the police can never act on an anonymous tip unless corroborated. 1 would hesitate to see the Court adopt even such a rule because an anonymous tip, 1 suppose, means simply information furnished to the police by a person whose name at some subsequent time is not known to them or whose identity is not known to them. So that it would embrace a situation perhaps where police are in hot pursuit of a burglar and some 1102 l :t 4 .) (i S !> 10 11 12 15 1<> 17 18 1!) 20 21 20 24 25 pedestrian on the street says, "He ran down that alley and into that house," and unless the police either learn later or ascertain the name and identity of the pedestrian, it is an anonymous tip. THE COURT: Well, but at least in that case you have a pedestrian who has seen, who is in a position to see the man run there. MR. ENEY: Yes. THE COURT: And you don't have somebody who calls up on the telephone. MR. ENEY: Exactly, but the point is, Your Honor, that it is not corroborating circumstances; it is a question of whether under all the circumstances the anonymous tip is one on which the police should reasonably act so that I think you will get into quite a situation if you try to say that it must be corroborated because in the example I gave it would be reasonable for the police to act and yet there would not be corroboration. Now, as to the class action I want to emphasize also what Mr. Marbury said and to point out that with the exception he noted that you must in order to be able to grant relief in a case of this sort, a class action case, be able to say that the plaintiffs are entitled to relief and that any other person in the class purporting to be represented by them is entitled to relief. 1103 i :{ 4 (i s !) 10 17 18 1!) 20 21 20 24 24 Now, if you eliminate from this case the racial overtones which it seems to us must be eliminated because this is not the case at all, that it happened that the Veneys were Negroes and they therefore searched premises where Negroes were more likely to be found. If you eliminate the racial situation and if as you must you now also eliminate the fact that the police are seeking the Veneys, then what you must ask yourself is whether any householder in the Baltimore City, Mr. Marbury or Your Honor or anybody else at the present time,is threatened with unconstitutional action by the police and the threat is so immediate that this Court should act. It seems to us that whether you reach the conclusion that because the Veneys are apprehended that the case is moot or don't reach that conclusion you necessarily must consider whether to grant an injunction in the light of the fact that the police are not now conducting a search for the Veneys so that the matter to which any injunction issued by Your Honor would be directed, would be any search, not a search of Negro neighborhoods, but a search of white neighborhoods or anywhere else or the most you could limit it to perhaps would be a search of any premises anywhere in Baltimore City by the police seeking to execute an arrest, and it seems to us that unless Your Honor would conclude that there is an ironclad constitutional rule that in 1 •) :i 4 5 (i 7 S <> 10 11 12 l.'l 14 15 l(i 17 18 1!) 20 21 ■)■> 22 24 25 1104 executing an arrest an officer must have either consent or a search warrant to enter the premises,with the possible exception suggested by the plaintiffs that the officer has personal knowledge of the presence of the defendant, unless you are going to reach such a conclusion, you must almost inevitably reach the conclusion that you cannot as a practica matter issue an injunction in the present posture of this case because there isn't anything against which you can enjoin other than against, as suggested by Mr. Marbury,to enjoin the police from violating the January 11th order of the Police Commissioner, which would seem to be a rather futile thing to do. Our conclusion therefore is that to the extent that the Court finds that the police have been guilty of excesses, the Court should in no uncertain terms condemn it. We do not think that this case is one in which an injunction should be issued or one in which there should be a declar atory decree. We feel that the practical problems which would confront the Court in attempting to draft either an injunction or a declaratory decree would be well-nigh insurmountable. This is a case where it seems to us the Court must balance the need of society for adequate protection against persons who are or have committed a crime with the 1 •) 4 4 f) i; 7 S !) 10 11 12 1.4 14 15 1(i 17 18 1!) 20 21 •>2 24 24 25 1105 undoubted and unquestioned right of the householder to be safe in his home against unreasonable searches. This was the question which was posed by Mr. Jxistice Frankfurter in the Frank case, and it seems to us that it is precisely that question that confronts Your Honor, and I do not think that the question should be resolved by the issuance of an injunction here. THE COURT: We will hear from Mr. Murphy and Mr. Hughes and Mr. Naorit again after lunch. We will take a recess until two o'clock. (Thereupon, at one o'clock p.m., a recess was taken until two o'clock p.m.) 1 •> 4 4 fj (i 7 S <> 10 11 12 14 14 1.7 1(4 17 IS 11) 20 21 22 2 4 24 27 1106 AFTERNOON SESSION (The Court reconvened at two o'clock p.m.) MR. MURPHY: Your Honor, if I may-- THE COURT: Well, we will come back up the line. MR. MURPHY: Mr. Sause just came in, and I think you have not had the benefit of hearing from him personally, but I would like to give him an opportunity to speak. He is out in the library now. I thought Mr. Nabrit was going to go first. THE COURT: We go down the line and up the line, which is my universal practice here. If Mr. Nabrit is going to close maybe Mr. Hughes would be willing to make his statement at this time, but I will be glad to hear from you or if you want to send somebody else out to look for Mr. Sause. MR. MURPHY: Yes, sir. THE COURT: All right. MR. MURPHY: Thank you, Your Honor. THE COURT: Mr. Hughes. ARGUMENT ON BEHALF. OF THE PLAINTIFFS MR. HUGHES: May it please the Court, I had not anticipated an argument in this case. I have been ill 1 •) :t 4 5 (i 7 S !) 10 11 12 12 14 IT) 1(5 17 IS 1!) 20 21 22 24 24 25 1107 but am recovering. Learned counsel who just returned from similar cases in Alabama and learned members of the Bar, one of whom, both of whom, two of whom have been appointed to a committee for the special study of police proolems, I feel somewhat inadequate, but there are some things that I still feel should be said. We have had representations from the plaintiff or from plaintiffs and from the respondents, from the amicus curiae. I feel that I am speaking as a friend of the Court too, also a friend of the people, the citizens and householders of Baltimore. I feel too that I am speaking as well as a friend of the Police Department. The question of what transpired in the minds of Negro citizens during these raids or invasions of their rights, as we term it, was psychological as well as legal. They read in the newspapers of what has been variously estimated to be around twenty to five hundred raids raids on tips, or tip-offs. I believe the record shows that only nine tips were not turned-up. One tip as described by one of the officers was to a Jewish home, and they called the lady in the home and did not bother to respond when they found out who she was. I was born in Baltimore, and many of these 1 *) :{ 4 :> (> 7 s !) 10 11 12 12 14 ir. id 17 18 1!) 20 21 22 28 24 25 1108 people here were born before I was, home owners. They have a perfect right to look to the police for protection. Unfortunately, the question which has arisen from time to time periodically, I would describe it, rather than continuously has involved these same questions. When I started practicing law, at least when I was admitted to the Bar in April of 1931, it was only a few months thereafter that Judge Chesnut wrote his opinion in the Henson case, in the Ruffner case. It so impressed me even before I started practicing that I still have the clipping, and I would be glad to show it to my associates. fhe thing that impressed me most was his quotation that 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 warrant shall issue except upon prooable, but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. He went further. He said in consequence of numerous but anonymous complaints that property was being used for the illegal manufacture of whiskey that these agent raided this place on December 12, 1930 without a search warrant and without- a warrant of arrest, as their informatio was purely anonymous, it is obvious that they could not 1 •) 2 4 5 (> 7 S !) 10 11 12 12 14 15 l(i 17 18 1!) 20 21 22 22 24 25 1109 validly have obtained a search warrant. Further down he said something which is most appropriate in this case when he said that mere acquiescence as distinguished from consent is not enough, with cases cited. He further cites, which I call to Your Honor's attention,"Bearing in mind the important nature of the constitutional rights and immunity given by the Fourth Amendment, it seems to me that a trier of the facts," if Your Honor please, "should be slow in finding an intentional and voluntary relinquishment of this right by an individual when the testimony or the effect of the testimony is uncertain." Much has been said about the few we placed on the stand. We did that because it would have been an impossibility and ridiculous for Mr. Nabrit and other counsel to have included all who complained of invasions of their rights. My brethren and the amici curiae agree with the State apparently that the question is now moot. THE COURT: I didn't understand that. 1 don' understand that they argeed that it is now moot. MR. HUGHES: Well, there has oeen argument to that effect, Your Honor, then. If Your Honor will recall then when we all were discussing this in chambers, I raised the question then, What 1110 1 4 .) (i i s !) 10 11 12 12 14 15 1<> 17 IS 1!) 20 21 22 22 24 if the Veneys are captured? Well, it so happens that the Veneys have been captured; but that still does not solve this problem. I raised this question too: What if the Veneys escape? We have had many escapes from our Baltimore City Jail. It so happened I represented a young man who was accused of two murders, got him acquitted, and he was then prosecuted for escape. He led the escape from the jail.. If, as was stated in the paper, the Veneys are escape artists, why, we may have to worry about this question again. We ask and peticion this Court for a final decision on this matter of the injunction. It is filed on behalf of, in my opinion, on behalf of all of the citizens of Baltimore. It so happens that those complaining are Negro citizens; but the same thing could happen to those of Polish, Jewish, or French or other extraction. The thing we are complaining of is the raid by fifty usually, approximately fifty at the most who went on anonymous tips to the homes and invaded the privacy of these people. Many times children were intimated. Your Honor mentioned this morning, I believe, that I understood you to say that the last two raids were on the 11th and 12th of January, is what I understood Your Honor to say. 25 1 ‘) :t 4 •') (> 7 S !) 10 11 12 10 14 i:> Ki 17 18 1!) 20 21 22 20 24 25 1111 THE COURT: They were the last two except the two much later which had a warrant. The last two raids that the Special Master examined, one on the 11th and one on the 12th, and then the other two dealt with raids where search warrants were obtained a month or so later. MR. HUGHES: That is right, Your Honor. Your Honor, this isn't evidence, of course, but I think it is fair argument to say that on February 3rd there were two additional raids. Unfortunately, and this is not the Afro-American, which is published, this is the News-Post, the News American showing the officers pointing their guns at the home (indicating). In those two raids the officers found time to surround the home, go to Judge Finnerty, and secure a warrant before entering. In the second raid they found time to go to a police magistrate after the home had been surrounded, and it i two hours, I believe, this day before, I believe, Lieutenant Cadden who returned with the warrant. Our contention is this could have been done in any and all of the raids of which complaint is made here. I may differ a little with my associates in thi respect, that I can understand how there nay be justification or excuse for raids on December 25th, 26th, and possibly the 27th. That might by a stretch of the imagination be conside 1112 l :{ 4 .) (i 7 ,K !) 10 11 12 14 14 15 Hi 17 1H 10 20 21 22 24 24 25 immediate pursuit. Thereafter the anonymous tips became the order of the day. 1 want to mention to the Court some of those tips, or one in particular I happened to hear which could have resulted in serious consequences. I was sitting in my home during the trial of this case listening to the television when there was a false alarm at the corner, well, just one block away. While the officers were there and the Fire Department, two little boys ran through the alley behind my home, a half-block from the alarm box, and both of them were yelling, "The Veney boys did it, the Veney boys did it. I saw them." Now, that could have had serious complications, I sat in my home and made sure that the doors were still locked at all times. I am a citizen of Baltimore, and my name has been mentioned in the press as an attorney in the case. I have clients come to the home; so of them look like the Veney boys too. Somebody could have called, and unlike Mr. could have Marbury's home,my home / been raided, and I have a very bad dog there, and it could have been very serious consequences. You hurt my dog, you nurt me. Mention has been made of the fact that perhaps( well, it's been intimated but the matter was dropped now 1113 l :{ 4 7 S !) 10 11 12 i : i 14 1") IK 17 18 1!) 20 21 22 28 24 2o because the Veney beys are incarcerated that there is no further fear that the matter is still going on, but I want to call the Court's attention to the thinking of my community, and I think it is important, maybe just as important as the citation of all these cases. As every once in a while for one reason or another there have been these periodic outbursts by the Police Departments for one cause or another when the citizens, the colored citizens have felt that they were being deprived of their constitutional rights. In 1942 we had occasion to march to Annapolis, and Judge Stanton was in office, and I think it might be appropriate if Your Honor will bear with me just to hear what; at that time I said: That the most cherished possession of the colored citizens is the heritage of democratic institutions under which they as free men and women enjoy the inalienable rights of American citizenship. Unfortunately, democratic rights are only guaranteed by our Constitution and not assured. As Negro citizens we must be ever vigilant in order that the liberty and rights vouchsafed us by the Constitution of the United States shall not be denied us by thoughtless, unsympathetic, and prejudiced individuals. A long continued acquiescence in the denial of one's constitutional privileges will ultimately result in 1 •) :{ 4 .') (i 7 S !) 10 11 12 12 14 15 1<> 17 18 1!) 20 21 22 22 24 25 1114 the total deprivation of those privileges. That is why we colored citizens must constantl; be alert and always careful to preserve the democratic way of life for all the people and not just the favored few. Liberty, happiness and even the pursuit of lif is seriously jeopardized in the City of Baltimore, and this was 1942 in so far as the colored citizens are concerned by the totally indifferent and frequently oppressive action of the officers employed by the Police Department. Since Commissioner Sand took office there have been ten killings of Negro citizens by policemen on the streets of Baltimore City. These unfortunate homicides have been investigated by the NAACP and in no case has there been found full and adequate justification for the killings in the light of the law. The right of self-defense and the apprehension of the suspected criminals. And it goes on with citing some other facts. In conclusion we said that we honestly believe that when one citizen is denied freedom of speech, religious worship, the right to peaceably assemble, and petition for redress of grievances, to bear arms or to protest or to protect his person and home from unreasonable searches and seizures or to defend himself when reasonably attacked, then also will two citizens be denied that right, then a group of citizens, then a religious minority, then a 1 ■> 4 4 5 (i 7 M !) 10 1 1 12 12 14 15 10 17 18 1!) 20 21 22 24 24 25 1115 racial minority. That is what we feel here, Your Honor, that we have come before Your Honor seeking a suspension of what we consider and believe to be under the Constitution a violation of the Constitution both of Maryland and of the United States I might say that every argument that you heard, everything you have read in these briefs was advanced during the time of the Writs of Assistance when the complaint of the illegal searches and seizures, they were all argued before the Fourth Amendment to the Constitution was adopted, and Article 26 of Maryland, the Bill of Rights. What is needed is enforcement of these things. Always we are told that, well, “It is over now and it won't happen again." After that complaint in 1942 when it seems to oe almost periodical, around aoout an eight or ten year period there were raids in all public taverns. Your Honor has read the case of Mason, I believe, vs. State. He happened to be in my office at that time, and I represented him. Go into any public place, tavern, cafe, any place that you had Negro citizens and order them to hit the wall, then pat them down, search them for weapons. When our case was filed this violation ceased for a while. The law xvas made clear that it shouldn't happen again; and yet in this very case, the officers went 1116 i •» :{ 4 :> (i / s 10 11 12 1,1 14 1.') i<; 17 is 1!) 20 21 22 24 25 into a poolroom, hit the walls, patted everybody down. These things will continue unless there is a precedent which enjoins activities such as this or future violations. The fact that the Police Department paid attention to Your Honor's admonition, I would call it, and apparent concern about this case made them very careful in proceeding according to wnat we call and understand to be the Constitution. But unless Your Honor goes further and enjoins activities of this nature or in this particular case it will happen again. There should be a precedent set. I am not one who cries out, "police brutality" for every violation of one's rights. They vary. Sometimes it is police stupidity. Sometimes it may be ignorance of the law. I do say that the Police Manual and the Digest of the Laws contained in the Manual distributed to policemen is not the Constitution of Maryland or the Constitution of the United States. Where there are violations they should cease. I believe, Your Honor, that everything has been covered so far as the facts are concerned. You have indicated that you read those. The law needs no further repetition or citation of cases. I do feel that we must consider, seriously consider the mental attitudes of a third 1117 of this population of this City. We want co-operation between the police and the Negro citizens of Baltimore, but we want it as a mutual thing. We want to bridge the gap, and the people must feel assured that the Courts will protect them when there is any invasion of their liberty. Host of these things are never heard of. There would never have been a case like this, I suppose, except for the Veney brothers, and the unfortunate— and let me say before I conclude, Your Honor, lest there be a mistake about it, the whole Negro community regrets sincerely the death of an officer and the shooting of another. We all want whoever is guilty to be punished, but we do not want the citizens to be punished in an effort to apprehend the guilty. THE COURT: Does the State wish to say anything further? MR. MURPHY: Yes, Your Honor. Mr. Sause will, or if there is any objection, I will continue on. THE COURT: No, indeed. CLOSING ARGUMENT ON BEHALF OF THE DEFENDANT MR. SAUSE: May it please the Court, this case brings together probably the two foremost trends in the law at the present time and also two which are certainly the most supercharged, and that is, one, the change in the theory 1118 and the practice of crime prevention and detention; and secondly, the changes that are coming about in the field of civil rights, and particularly in the field of what we might call race relations. It is indeed unfortunate that these two parallel perhaps trends have to meet in a case of this sort. I would like to suggest to Your Honor at the outset that I think that the most delicate problem that Your Honor has to face here is the question that has to do with the investigation of anonymous tips or leads because if I understand the plaintiffs' argument properly, and without any certainty that I do, I think that the plaintiffs would be happier if Your Honor were to say that the police should make some type of evaluation of these tips or leads and should only) • proceed on a tip or lead only when there is probable cause and place reliance on the tip or lead. Now, I use the term ‘'investigate" in its true sense. Investigation at this point does not include any sort cf a search. Investigation simply included following up a lead; that is, to say, taking the simplest and commonest example, someone calls the Police Department and says, "The Veneys are at such and such a house." Should the police say,as perhaps you or I would in another context, "This fellow didn't even give his name, so why should I place any credence in this? ' Or should the 1119 police do as they did here up to a point, should the police go and make at least some investigation of it. The officers have indicated to you that some times these leads or tips pay off. While Your Honor or I or the members of the general public in the ordinary course of our business might not rely on the tip or lead, there are reasons why a person would remain anonymous in a criminal situation for any number of reasons, all of which are perfectly valid and perfectly understandable. The police have indicated that these tips or leads have all proven to them to be valuable. I would like to call Your Honor's attention to-- THE COURT: Oh, no, I don't think anybody has suggested that they shouldn't investigate anonymous tips. The question is, should they enter a person's house either without a search warrant, which is the extreme position the plaintiffs have taken or without what may be called reasonable grounds, which have been suggested as a preferable term, a reasonable basis, as a suggested preferable term for "probable cause", to develop the technical meaning. MR. SAUSE: If Your Honor please, if we can proceed on that premise, that is fine, but as I said at the outset I do not understand the plaintiffs' brief upon reading, reading, rereading and rereading a third time to confine 1120 their argument to that. There was much talk about going out, that the police should have done more, that they should have made some inquiries in the neighborhood before knocking at the door, that they should not have brought all of those men to the scene, and so forth, and all of this involves whether or not the police should have made any investigation. Each time there is all this reliance upon the anonymous tips, and in some cases the so-called tips are evaluated, and whether the police should have proceeded on them at all. THE COURT: Are you arguing on behalf of the police that they are justified in entering homes on anonymous tips without more? HR. SAUSE: No, sir. THE COURT: If so, it is the best evidence I have had so far for the issuance of an injunction. MR. SAUSE: If Your Honor please, I am very sorry, Your Honor. I tried to make it clear at the outset that it is my understanding of the plaintiffs' brief that the plaintiffs question the police acting, doing anything on the basis of anonymous tips. If I have misconstrued their brief I am very sorry, sir. Now, with regard to the injunction in this case, if Your Honor please, an injunction can only be issued, we 1 ■> :i 4 .’) (i 7 ,s !) 10 1 1 12 10 14 15 i<; 17 IS 1!> 20 21 ■»•> 20 24 25 1121 suggest, in a case where all of the rights or all the members of a class can be adjudicated in one proceeding. We think there are several different types of situations where the police may have been in this situation or maybe in the future justified. One is where the police have consent, and two, is where they have probable cause, and also where the police are acting under a valid search warrant. Therefore, we think that it is impossible for the Court at this time to find who the members of the class will be. The members of the class will not be the whole citizenry of Baltimore, as the plaintiffs suggest, for the reason that the searches, some of the searches which were conducted here and some which may be conducted in the future may be and may have been, and were, I suggest constitutional! permissible because they were conducted within the bounds suggested by these three exceptions of consent, probable cause or the presence of a search warrant. Thank you, Your Honor. THE COURT: Mr. Nabrit. CLOSING ARGUMENT ON BEHALF OF THE PLAINTIFFS MR. NABRIT: May it please the Court, Your Honor asked one of the amici curiae--I believe it was Mr. Eney, perhaps it was Mr. Marbury, I can't recall--whether or not the case should not be decided on perhaps a different 1122 4 basis because a hearing for a formal request or for a formal injunction, and I would strongly urge the contrary, and I think that-- on? THE COURT: Well, what is the case before me .) (i i s 10 11 12 i:i 14 IT) 1<> 17 IS lil 20 21 20 24 27) MR. NABRIT: It is before you on a preliminary injunction. THE COURT: That is what I thought. MR. NABRIT: And what I am saying is that the case should not be decided on any such basis in view of the fact that we have had a full and complete trial and presenta tion of the evidence, presentations of arguments, and in view of the fact that there is no suggestion on anyone's part that I know of, that there really isn't any more evidence about the matters or things that happened before the filing of the complaint that anybody wishes to present. For the plaintiffs part I state at this time I know of no further evidence that we would wish to present on a final hearing and that we would be perfectly nappy to submit to a final decision right now. The State, of course, has the right as it says to have further evidence. THE COURT: I understand that you would like to, that you are suggesting a stipulation that this be treated, that the evidence that has so far been offered be 1 •) 4 4 5 ii 7 s il 10 n 12 14 14 15 Hi 17 18 1!) 20 21 •>•> 24 24 25 1123 treated as evidence on the merits as well as on the preliminary injunction? MR. NABRIT: Yes, sir. THE COURT: Mr. Hughes, do you agree to that? I think you represent other plaintiffs. MR. HUGHES: I represent, yes, Mrs. Jackson. THE COURT: Does the State agree, or does the State wish to present additional evidence? MR. MURPHY: Your Honor, the case the way it was presented, this coming at this time at the very end of the hearing, that my inclination would be to keep it as it is, as it was presented initially, a hearing on a preliminary injunction.• I think we have all been thinking that the posture of the case and the amici curiae have presented their arguments on that basis, and I believe I would agree with the request of ray brother at this point. MR. NABRIT: Well, be that as it may, Your Honor, I think the point is the same, that is, there are not any special equity considerations because the matter has beer considered in a preliminary affirmative way. THE COURT: I don't think it has been curso- rially presented. MR. NABRIT: No, no, indeed, and nobody is going to present evidence or anything else because it was a 1 • ) 4 4 5 (i 7 s !) 10 11 12 i : i 14 ir> 1(i 17 18 1!> 20 21 24 24 25 1124 preliminary hearing. Now, with respect to the matter of the issue of law, with respect to whether or not warrants are required for the search of premises where the objects of the search are persons, I would like to reemphasize that the people who were the subject of the search, the people whose homes were searched do not care at all who or what the police are looking for. It is a matter of great indifference to the plaintiffs that the Veneys have been captured. It is the injury to their privacy, and the effect is the same no matter what the police object is. Hr. Marbury has been arguing and stated a conclusion that he saw no reason, that he saw a distinction between a search for a person and a search for objects. THE COURT: Who did? MR. NABRIT: Mr. Marbury. THE COURT: He said that if he came to your house and told you they were searching for criminals whom they think may be lurking in your cellar, that you feel exactly the same about that as if they came to your house and told you they were searching for some marijuana that you have hidden under your mattress. MR. NABRIT: Well, I take it, Your Honor, tha the more accurate approach to that for the sake of our case is that in the first place he would have to tell me I am 1 ■> :{ 4 •i (i 7 S !( 10 11 12 12 14 ir> i<> 17 18 1!) 20 21 ■>•_> 22 24 22 1125 hiding a murderer in my house; but in any event surely if neither is true, neither was true in Mr. Lankford, and certainly if he finds this out, you recall the circumstances of the case, of this case, but all I am saying is that what I am really trying to say is that I don't think the Court would let them do any such thing. Let's look at it for a moment, and this is with respect to the question Your Honor asked me earlier of what is the Fourth Amendment designed to protect. Mr. Hughes read it a moment ago, but I don't think it hurts us again, that it focuses on the place, it starts out with the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, but no warrant shall issue but upon probable cause supported by oath or affirmation, the last part of the Fourth, particularly describing the place to be searched and the person or things to be seized. Now, the point I am trying to make all the time is that there has not, in this case there has never beer any warrant affecting a judicial determination that the place to be searched was one wnere the felon might be located. The argument is, I think one of the strongest arguments for requiring the police get warrants is the argument that the police aren't constitutional lawyers and 1 •) 2 4 5 <) 7 S !t 10 11 12 12 14 1.7 lli 17 IS 1!) 20 21 22 22 24 25 1126 they can make a mistake and have poor judgments. The same is true I think for the argument that it is difficult to frame a court order that the police will be able to apply and understand in the future, which is exactly the point, I think, of requiring the police go to a magistrate or a Judge who is trained in constitutional law and have him make the decision. THE COURT: Even in hot pursuit? MR. NABRIT: No, sir. THE COURT: And stop the hot pursuit? Well, where do you draw the line? Mk. NABRIT: From the very beginning we have recognized that. THE COURT: Well, where do you do it? MR. NABRIT: In emergency circumstances in pursuit of a person just as it is now in the search for a thing. THE COURT: Well, how do you draw the line? How do you word the injunction that draws the line? He must be in sight? What about the case that was cited a few moments ago of the police who get--in the case I had in habeas corpus just not long ago where a man is--there is a robbery, and somebody says, "The man went in there." The police don't know, and they go into the 1127 l :{ 4 fi !» 10 11 12 14 14 To 1« 17 IS 1!) 20 21 24 24 2') house to search. MR. NABRIT: Let me say this-- THE COURT: The police didn't see it. If you are making it depend upon personal knowledge of the police, it is a tenable argument, but certainly it handicaps the police to a great extent. MR. NABRIT: Well, I am afraid that my position must be understood particularly with the personal knowledge which has nothing to do with the emergency circumstances. It seems to me that, let me start out by saying that all I am contending for is the same rule that now applie > to the officers when they seek to find goods, objects, and I am, I would recognize that this is the practical affect of the matter which arises from tne fact that it is a person and not an object they seek, that it is something to consider and determine whether they are emergency circumstances, but the focus of the defense, the police defense is not at all on this because they never in any of these attempted to obtain any search warrants no matter what the circumstances were, but beyond that the Commissioner's General Order that Mr. Sause relies on wasn't at all focused on the question of whether there was time to get a warrant, but the only thing, it focused on whether or not the policeman makes a judgment if he had probable cause or-~ THE COURT: He would have to make a judgment 1 •) :i 4 ’) (i 7 s it 10 11 12 1 :i 14 i:> it; 17 18 10 20 21 •>2 20 24 20 1128 whether he had emergency circumstances. You can't get away from his judgment. In effect, you would be substituting circumstances for a reasonable basis. MR. NABRIT: That's right, and in effect, the policemen should be told emphatically that in the ordinary case you get a warrant, and it is only in the emergency that you perhaps that in that the law would justify proceeding without it, which is the same thing. THE COURT: Well, if you tell them that is the normal thing, then that means the normal thing even in hot pursuit, and the question is where you draw the line. You have got to draw the line somewhere, and I don't see how it is possiole to write an injunction that will not be subjec to constant interpretation. If you say emergency circumstances a policeman must stop always to determine whether this is emergency circumstances, and who is going to say what emergency circumstances are until you had a host of cases. MR. NABRIT: Well, may I say that if it is a matter of choice, and it seems to me to be equally more preferable that the police must have, they have to have some leeway in judging whether or not he has time to go to a magistrate, and he must determine whether or not he has the right or whether or not there is probable cause. THE COURT: I understand. I am saying that 1 ') 4 4 5 (i 7 S !) 10 11 12 14 14 ir> l( i 17 18 10 20 21 22 24 24 25 1129 I can well understand your argument that that would be a desirable rule, but I have to apply the law, and as I underst it, there is no authority that cites the rule which you think is desirable as the law. HR. NABRIT: Well, I think that the Morison case-- THE COURT: The which? MR. NABRIT: The Morison case which is cited to Your Honor from our previous memorandum, and the Morison case is in accord with our view. Morison vs. The United States on page 7 of our first memorandum. I thought Your Honor was asking me earlier today if we had any new cases. But extending the focus a moment, Your Honor, on the problem of writing an injunctive order it seems to me that whatever may be the difficulty, expressing, there may be limitations in expressing the meaning of it, of the general words, of the general concept of the Constitution, the fact that such difficulty exists doesn't mean that we shouldn't try, that knowing the limitations, knowing the necessary area of the things, that we shouldn't try. Obviously, obviously I say the Commissioner gave his policemen the proper general instructions and they make mistakes in the borderline area of searches, the borderline cases, the Commissioner has done his duty, and we 1 •> :i 4 5 <; 7 S !) .10 11 12 l.'i 14 15 i<; 17 18 lit 20 21 22 22 24 2.7 1130 submit that the Commissioner in this case of course has given instructions to his men that are erroneous, not in accordance with the law. THE COURT: Not in accordance with the law. You mean on your interpretation of the Morison case? MR. NABRIT: With respect to the Fourth Amendment. THE COURT: All right. MR. NABRIT: Now, there have been a variety of arguments, but apart from the merits on the equities in advancing particularly the standing argument which is made by the amici curiae, the argument is properly to say that the amici curiae are friends of the Court, but I take it that we are all agreed at this stage that they are no friends of the plaintiffs in this case. The arguments, it seems to me were distinguishe by a detached sort of indifference to the constitutional rights of Negro citizens1 privacy in their homes, but apart from that opinion of mine, which doesn’t matter very much, I think that-- THE COURT: I think it is a rather unbecoming comment after the argument that Mr. Marbury made. MR. NABRIT: My view, Your Honor, is that their arguments about standing are not really reflections of a detached view of this issue of law, and that one’s 1 •) :{ 4 .’> i> 7 S !) 10 11 12 i:t 14 15 l(i 17 IS 10 20 21 •>2 20 24 20 1131 argument made, that particularly this one, that this was a notion that plaintiffs don't have standing to attack the general policy of searches without warrants or that there is some doubt about this, that this is a great issue. 1 invite the Court to read two Supreme Court cases well-known, Baker vs. Carr 369 U.S. 186, a question of standing in class actions. And also in view of the suggestion that Paley vs. Patterson is something novel, the Supreme Court's opinion in Evers vs. Dwyer, 358 U.S. 202. Back to Baker, the Supreme Court posed the issue, which was: "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" The Court held that, the complaint, I might say in Baker vs. Carr was filed by voting residents of four counties on their own behalf, on behalf of all qualified voters of their respective counties, but further on behalf of all voters of the State of Tennessee who were similarly situated. The Supreme Court held that there was standing, 1132 i :i 4 • > (i S !) 10 11 12 12 14 15 1(1 17 1S 1!) 20 21 22 24 2.> and they agreed with the appellant's right to seek relief, to protect and vindicate an interest of their own and those similarly situated. THE COURT: Well, do you disagree with Mr. Marbury's position that the issue is whether the right to an injunction is the right in each citizen of Baltimore? They are the class. I did not understand that there was any difference between you on that principle. You said your rights, that you are suing on behalf of every citizen, resident, or householder of Baltimore. And I thought you had agreed that in spurious class suits you could only get such relief as each member of the class might be entitled to, and I didn't understand there was any doubt about it. The question if this right--are you claiming that the fact that these two or seven plaintiffs' houses or houses in which they were living were raided, gives them any greater right to bring this suit than any other citizens of Baltimore? MR. NABRIT: Oh, absolutely, yes, sir, surely sir. I completely disagree with his argument. THE COURT: You think they have a right to bring a class suit on whose behalf? MR. NABRIT: I think that-- 1133 i 2 4 (i t S !) 10 11 12 111 14 IT) 10 17 IS 10 20 22 24 20 THE COURT: Who can they get relief for? MR. NABRIT: I think the fact that they have suffered inequities at the hands of the unconstitutional police practices presents the first requisite of the law of a real controversy,presents an additional concrete factual situation that the Court can give to them and that it seems to me I completely reject their argument. THE COURT: You mean that-- MR. NABRIT: — and that if Lankford has no standing which can be asserted here that they will never get to it. THE COURT: But isn't it evidence, isn't it really evidence, and couldn't the suit be brought, if you are right on your basic point that you say that the police have no right to make or to enter a house to arrest a man without getting a search warrant except in unusual circumstances, emergency circumstances, and if the police say, "We are going to continue to do that," and isn't everybody in Baltimore in exactly the same situation, and couldn't any citizen of Baltimore bring the suit? I don't understand the point. If they can't I don't see that you have any possible right. I think that is the basis on which you can maintain the suit unless you have shown some racial situation on your second point which is, your principal point, as I understood it was that you 1 ■) 4 4 5 (i 7 s !l 10 11 12 14 14 15 l(i 17 18 1!) 20 21 22 24 24 25 1134 were bringing the suit for a class of all citizens, residents, or householders of the City, and you said your second law point under the equal protection clause was with respect to Negroes. Now, under your first point, it seems to me, you have to say that any citizen of Baltimore is entitled to the relief, and I don't understand that is disputed, if you are right in your major premise, any citizen of Baltimore is entitled to relief. I thought Mr. Marbury was making an argument for you on that point. MR; NABRIT: I again must repeat, I disagree. I understood him to argue that since, that Mr. Lankford's position was no different from any other citizen of Baltimore and obviously, and obviously no other citizen of Baltimore can maintain the suit and therefore Mr. Lankford can't sue. THE COURT: I don't understand that. Mr. Marbury didn't suggest that this suit be dismissed for lack of standing, as I understand ic. He put it on the question of relief. His recommendations, as I understood it, at the end was that the Court retain jurisdiction of the suit. MR. NABRIT: And deny it, Your Honor. THE COURT: And deny the preliminary injunctioi on other grounds than the ones you are talking about and 1 •) :i 4 5 (i 7 S «) 10 11 12 1:{ 14 15 Hi 17 18 10 20 21 22 28 24 25 1135 retain jurisdiction of the suit and keep the suit pending. That was my understanding. That is a far different thing from saying that the suit should be dismissed because the plaintiffs have no standing to maintain the suit. Did I misunderstand Mr. MarDury'3 argument? MR. MARBURY: No, sir. That is right. MR. NABRIT: Your Honor, I don't comprehend any difference between saying the plaintiffs have no right to relief and saying they have no standing to obtain relief and saying they don't have any standing to bring the suit. THE COURT: The difference is whether you are just interested in winning or losing the suit or whether you are interested in the grounds upon which the Court can properly decide in your favor or can't properly decide in your favor. That is the difference. MR. NABRIT: Your Honor, I understood the amici curiae urge the injunctive relief the plaintiffs seek be denied on the grounds that the plaintiffs, that all injunctive relief that the plaintiffs seek be denied on the grounds that the plaintiffs don't have standing, don't have standing to maintain any suit, and if the Court held that that would be a complete disposition of the case on the merit MR. MARBURY: That is not the contention I made. MR. NABRIT: Well, I didn't- 1 •) :i 4 5 (i 7 s !) 10 11 12 12 14 15 10 17 IS 1!) 20 21 22 22 24 25 1136 MR. MARBURY: I didn't say tnat. MR. NABRIT: I certainly couldn't, I certainl don't think, I inferred Mr. Marbury'e view, his explanation to say that. MR. MARBURY: That is not what I said. MR. NABRIT: Certainly 1 thought I understood Mr. Eney's argument of the case to be a pattern. THE COURT: I think they disagreed, undoubted MR. NABRIT: Yes. THE COURT: I think that Mr. Eney felt that the case should be dismissed, but Mr. Marbury didn't think so, but he took a different position. MR. NABRIT: But, Your Honor, wnere it seems to me that,that it is a case of holding the case on the docket, that the plaintiffs have no right or standing to obtain relief is a little different from dismissing it. THE COURT: Well, I stated what I understood Mr. Marbury to say, and he said that I had properly stated his argument as he made it. You stated what you understood and he said that is not what he argued, so I don't think that we can properly pursue it until we can find a common basis. You had better move to the real point. MR. NABRIT: 1 have to go to something else because I don't understand Your Honor's explanation of Mr. 1 •) :{ 4 5 (i 7 S !» 10 11 12 i:i 14 17 1(> 17 18 1!) 20 21 22 22 24 2o 1137 Marbury as to what he said at all. Let's go back to something Mr. Murphy said, the cases that he quite correctly pointed out, that we have not, that we intended to, have not promised you, that we have not discussed, the various specific cases that he cited appearing on page 8 of the brief. THE COURT: 1 don't think you need discuss them individually. MR. NABRIT: No, I just want to say one sente about it. THE COURT: Yes. MR. NABRIT: The only one perhaps an except! as far as I can recall the only thing that really, the only point is, is the Love case in the Fourth Circuit that he cited, and that relies on another, the Morgan case, the North Carolina case entirely, and that relies on, we are right back on the case that I read to Your Honor this morning when I said I had in Chappel vs. King, and all of these cases which cite each other without any reasoning or discussion of the real problem which seems to me that the rule that the police decide xn searching a house is completely inconsistent with the right of privacy. anything? I thank Your Honor for your consideration. THE COURT: Does anyone else wish to say 1138 l :{ 4 .) (i 7 s f) 10 11 14 15 i<; 17 is 10 20 21 20 24 25 (No response.) THE COURT: Well, I want to thank counsel on both sides, particularly counsel for tne plaintiffs for the very thorough briefing that they have given this case which will be of very considerable help to the Court in working out the troublesome problems that we have here. I want to thank the amici curiae for the time they spent on the case, the thought they have given to it, and for the arguments that they have made. I will get to work on these briefs and on the evidence and will have some parts of these arguments written up, and perhaps a little bit of the evidence as to which there is some question, particularly that part dealing with Lieutenant Hewes, to which Mr. Nabrit referred, so that we can be sure of it as to the part he did play because I know he went further than my notes show and along the line that you were arguing, and I will get at this promptly. MR. HUGHES: Your Honor? THE COURT: Yes, Mr. Hughes. MR. HUGHES: Your Honor, before adjourning I want to say as an international thing that I think the Court would be very pleased to know that we have a young attorney here from Algeria who had completed her course in London and wanted to meet you. THE COURT: Of course, and I will be glad to 1 •) 4 i) (i 7 S !) 10 1 1 12 12 14 1.', 1<> 17 IS 1 ! ) 20 21 •>2 22 24 22 1139 have you bring her to my chambers. MR. HUGHES: Well, she had to leave. THE COURT: Well, I am sorry. (Thereupon, at 3:21 o'clock p.m., the hearing was concluded.) 1 •> 4 4 f> (i 7 ,s 0 10 11 12 1.4 14 1.7 1(1 17 IS 10 20 21 22 24 24 27 CERTIFICATE OF REPORTERS W e , t h e u n d e r s i g n e d , d o h e r e b y c e r t i f y t h a t t h e f o r e g o i n g t r a n s c r i p t i s a t r u e a n d a c c u r a t e t r a n s c r i p t o f t h e p r o c e e d i n g s h a d i n t h e a f o r e m e n t i o n e d c a u s e . y . , ( ! -_____ F r a n c i s T . O w e n s G o r d o n C . M c F a d d e n O f f i c i a l R e p o r t e r s