Lankford v. Schmidt Transcript of Proceedings Vol. 9

    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



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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:



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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



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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



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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



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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

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it.
On page 7, Your Honor, the middle of the page, 

with respect to the search of Roscoe Cooper.



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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



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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.



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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



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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



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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.



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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.



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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



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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



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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



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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



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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

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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

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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



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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--



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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



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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.



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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.



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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



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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.



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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.



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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



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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.



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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.



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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



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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



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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,



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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

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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



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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,



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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



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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



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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



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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



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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



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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



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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



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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



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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



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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



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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



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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?



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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.



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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.



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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



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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,



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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



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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\



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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



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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



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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



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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.



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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.



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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,



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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



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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

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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.

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STATEMENT OF AMICI CURIAE 
MR. MARBURY: If Your Honor please, Mr. Eney,

Mr. Coughlan and I have discussed this matter at length



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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



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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



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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

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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.



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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



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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



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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



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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



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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



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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



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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



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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.



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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



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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.



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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



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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



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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.



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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.



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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



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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



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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



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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.



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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



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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



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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.



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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



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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



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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.)



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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



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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



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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



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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



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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



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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



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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



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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



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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



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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

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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



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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

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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



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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



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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



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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



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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



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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



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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



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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



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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



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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

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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--



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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



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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



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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-



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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.



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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



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(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



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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.)



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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