Monthly Archives: February 2017


Terry v. Ohio: “Stop and Frisk” Under Probable Cause (06/10/1968)

Terry v. Ohio

Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Argued: 12/12/1967

Decision Date: 06/10/1968

Decision Record: 8-1; no

Justices Plurality: Earl Warren, Hugo Black, John Harlan, William Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall

Justices Dissenting: William Douglas

Effect of the Decision

This case upholds that a “Stop and Frisk” performed by the police under the probable cause standard does not violate the Fourth Amendment.

In Favor

In representation of Terry, attorney Louis Stokes argued, “This case originally arose in the Common Pleas Court of Cuyahoga County, based upon the indictment for carrying a concealed weapon, in violation of Ohio Revised Code, Section 2923.01.

The defendant in this case filed a motion to suppress the evidence, and at the trial there was a hearing on the motion.

After hearing the motion, the motion was overruled and the case proceeded to trial.

This was a bench trial, jury having been waived.

After hearing the evidence, the motion originally filed was overruled again.

The defendant was convicted of carrying a concealed weapon.

The trial court ruled an opinion in this case, and we then appealed to the Court of Appeals for Cuyahoga County.

This court sustained and affirmed the conviction of the lower court.

This court also wrote an opinion.

Subsequently, application was made to the Ohio State Supreme Court for review, and that court dismissed the application for review stating: no debatable constitutional question.

This court granted certiorari.

The facts in this case are these and I think they are signally important, if we are to try to arrive at the proper verdict, with reference to this case.

This incident occurred at 2:30 in the afternoon, in broad daylight in the downtown section of Cleveland, Ohio.

The police officer in this case, one Martin McFadden, noticed two Negro males standing at the corner of Fourteenth Street, in the City of Cleveland, where Euclid Avenue and Huron Road intersect.

These two streets, if the court please, form a triangle at the apex of East Fourteenth Street — the police officer was approximately 100 feet away from where these two men were.”


Then in opposition, representing the state of Ohio, attorney Reuben M. Payne claims, “There it is indicated that after the officer had testified that he observed the conduct of these men, and that he had concluded that they were casing an establishment for a robbery, we find this quote appearing from the record, Question: Detective McFadden, can you tell us why you turned John Terry around facing the other two men, with you behind him?

Answer: Due to my observation, the observation on Huron Road of these two men, I felt as though they were going to pull a stick-up and they may have a gun.

That is supported and substantiated in the record of this particular case.

A question has been asked here, what is the difference between reasonable suspicion, and probable cause?

In one instance, in the arguments of the case before this court, the Court of Appeals in the Peters case, has said, it is that cause which is somewhat below probable cause on the scale of absolute knowledge of criminal activity.”


The majority opinion slip was written by Justice Earl Warren. He wrote, “We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Then in dissent, Justice William Douglas wrote, “In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their ‘seizure’ without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that ‘probable cause’ was indeed present. The term ‘probable cause’ rings a bell of certainty that is not sounded by phrases such as ‘reasonable suspicion.’ Moreover, the meaning of ‘probable cause’ is deeply embedded in our constitutional history. As we stated in Henry v. United States:

The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required.”

My Opinion:

In this case, I agree with the majority opinion. The Fourth Amendment clearly states for us to use the “probable cause” standard, which is what we are using out on the streets in the status quo. If the police have enough reason to constitute suspicion, then he or she has the right to stop the person and search them for weapons under the probable cause standard. Terry’s rights were not violated for his search was justified and the police had enough reason to believe that he and his friends possibly carried weapons on him.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Katz v. United States: Wiretap Public Payphone (12/18/1967)

Katz v. United States

Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?

Argued: 10/17/1967

Decision Date: 12/18/1967

Decision Record: 7-1; no

Justices in Favor: Earl Warren, William Douglas, John Marshall, William Brennan, Potter Stewart, Byron White, Abe Fortas

Justices Dissenting: Hugo Black

Justice John Marshall did not partake in the decision of this case.

Effect of the Decision

This case clarifies that in order for the police to eavesdrop on anyone’s conversation, even in a public pay phone, you must require a search warrant like the Fourth Amendment says.

In Favor

In representation of Katz, attorney Harvey A. Schneider argued, “The facts of this case that is now before the Court are really quite simple.

The law applicable is something else again.

But the facts are as follows.

Mr. Katz was surveilled by agents of the Federal Bureau of Investigation for a period of approximately six days.

During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth or a bank booth, so it was actually three booths.

One booth had been placed out of order by the telephone company and with the telephone company’s cooperation, the other two booths were used by Mr. Katz.

Sometimes he used one booth, sometimes he used another.

The tape was placed on top of the booth or the microphone was placed on top by a tape.

The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth.

Subsequently after about six days of surveillance, Mr. Katz was arrested.

He was then taken to his apartment building where his room was searched under a search warrant and numerous items were seized from Mr. Katz’s apartment.

The issues before the Court are fairly clear.

One, whether or not, the search and seizure or one of the interceptions of the telephone communications was prescribed by the Fourth Amendment; and two, whether or not, the warrant that was used to search his apartment building is constitutionally proper or constitutionally defective.”


Then in opposition, representing the United States, attorney John S. Martin, Jr. claims, “I think that the heart of petitioner’s argument to a certain extent is a radical change in the concept to the Fourth Amendment.

I think as Mr. Justice Brennan mentioned, it has been said in recent years that the Fourth Amendment protects more rights of privacy than rights in property.

However this Court has never held the right of privacy protected by the Fourth Amendment, does not exist within the framework of a constitutionally protected area.

As counsel mentioned, Mr. Justice Holmes speaking for unanimous Court, this Court’s opinion in Hester versus the United States, said very clearly, “The protections of the Fourth Amendment do not extend to an open field.

To adapt the test which counsel has suggested in this case would radically change the rules under which law enforcement has been operating for a long time with the approval of this Court, and I mean it in this sense.

It seems to me that to say that no matter where the activity takes place, it is protected by the Fourth Amendment.

The subjects to that Amendment not only the matter of what is overheard, but what is observed.

Assume, if you would please, the following situation.

Take the case that we have here.

And instead of the agents being interested in hearing what Mr. Marks said, but let’s assume it was a kidnapping case and they knew that this booth had been used on one occasion too by the kidnapper to call with regard to ransom.

And the kidnapper had scheduled to call for eight o’clock in the evening.

So as not to scare him off, the agents might station themselves in another building some distance away, and armed with binoculars perhaps even in infrared scope that would allow them to see at night, put this telephone booth under surveillance.

The kidnapper would approach that booth.

He might look around to make sure that he was secured, that nobody was observing him.

He would be wrong in his conclusion.

I assumed that under Mr. Mark’s — Mr. Schneider’s rationale that the fact that the agents saw him entered the booth, but they could not testify that that would be an unreasonable search and seizure.

I think that this Court has always recognized the doctrine.

That one is protected is the right to privacy which exists within a constitutionally protected area, within a home, within an office, some area in which the party involved has an interest.

It may not have to be a property interest of a tenant or an owner, maybe that of a guest in those premises.

But it exists only within the framework of a constitutionally protected area.

We submit on an analysis in that term what occurred here did not occur in a constitutionally protected area.

As we see it, there is no significant difference between the telephone booth involved in this case and an open field.

An occupant in a public telephone booth is just as subject to visual surveillance as a man standing in an open field.

These phone booths are neither designed nor are they considered to be totally sound proof.

It’s rather easy to overhear this I think all of us know.”


The majority opinion was written by Justice Stewart. He wrote, “These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored “the procedure of antecedent justification . . . that is central to the Fourth Amendment,’  a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case.”

In respectful dissent, Justice Black said in his opinion, “So far, I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment’s scope since its adoption, and that the Court’s decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.

The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment’s applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:

The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized. . . .”

My Opinion:

In this case, I agree with the majority decision. Eavesdropping on one’s conversation, even in a public pay phone, is violating not only their privacy, but their Fourth Amendment rights, which clearly states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” By wiretapping a public pay phone to listen to a private conversation, you are not allowing them to be secure against “unreasonable searches,” much less use the information obtained unconstitutionally against them in court. Katz’s Fourth Amendment rights were infringed upon because eavesdropping on a conversation without a warrant to use against them in court is still considered an “unreasonable search.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Startup Stock Photos

Grutter v. Bollinger: Racial Student Admissions (06/23/2003)

Grutter v. Bollinger

Does the University of Michigan Law School’s use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Argued: 04/1/2003

Decision Date: 06/23/2003

Decision Record: 5-4; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg (L*), Stephen Breyer (LC)

Justices Dissenting: William Rehnquist, Antonin Scalia (RC), Anthony Kennedy (LC), Clarence Thomas (R)

Effect of the Decision

This case clarifies that University of Michigan Law School’s use of racial preferences in student admission does not violate the Fourteenth Amendment and is encouraged.

In Favor

In representation of Barbara Grutter, attorney Kirk O. Kolbo argued, “Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her.

That race… that the application would be considered for free from the taint of racial discrimination.

The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body.

With the loss… with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogeneous mass.

It is precisely because we are a nation teeming with different races and ethnicities… one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.”


Then in opposition, representing Lee Bollinger, attorney Maureen E. Mahoney claims, “The Solicitor General acknowledges the diversity may be a compelling interest but contends that the University of Michigan Law School can achieve a diverse student body through facially race neutral means.

His argument ignores the record in this case.

The brief says that it is one of the paramount interests of government to have diversity in higher education.

And it has certainly been the consistent position of the Department of Education for the past 25 years that Bakke is the governing standard, that schools are encouraged to use programs to achieve diversity, because of the important interests it serves for students of all color.”


The majority opinion slip was written by Justice Sandra Day O’Connor. She wrote, “In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.”

In respectful dissent, Justice William Rehnquist said in his opinion, “I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” Ante, at 17.

Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v. Paradise, 480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the … duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny–that a program be limited in time–is casually subverted.

    The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.”

Also writing a dissenting opinion slip, Justice Anthony Kennedy wrote, “To be constitutional, a university’s compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.

    The Court’s refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools’ choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School’s Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the School’s affirmative action policy. He testified that faculty members were “breathtakingly cynical” in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are “affirmative action’s more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds.” Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577—578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation.

    It is difficult to assess the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante, at 30—31. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioners nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it.

    As to the interpretation that the opinion contains its own self-destruct mechanism, the majority’s abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School’s profession of its own good faith. The majority admits as much: “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” Ante, at 30 (quoting Brief for Respondent Bollinger et al. 34).

    If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

    It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.”

My Opinion:

In this case, I agree with the dissenting side. Considering a person’s race in student admissions is not constitutional at all and goes against the Fourteenth Amendment’s Equal Protection Clause. In a previous opinion, Fisher v. University of Texas at Austin, I stated, “The majority claims that taking race into consideration is lawful under the Equal Protection Clause. However, I fail to see allowing race to be a factor in a decision for acceptance is anywhere near ‘equal.'”

A person’s race should not determine their future, especially because they can’t help it. Everyone should be treated equally and receive the same treatment when under consideration for admission into college. Race should play an extremely small, if not none, role in a person’s education. It would be completely unfair if a person who didn’t try very hard was admitted over another person who worked much harder to get into college merely because the school wanted more “diversity.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Robinson v. California: California Narcotics Law; Criminal Offense (06/25/1962)

Robinson v. California

Was the California law an infliction of cruel and unusual punishment prohibited by the Eighth Amendment?

Argued: 04/17/1962

Decision Date: 06/25/1962

Decision Record: 6-2; yes

Justices Majority: Earl Warren, Hugo Black, John Harlan, Potter Stewart, William Brennan, William Douglas

Justices Dissenting: Tom Clark, Byron White

Justice Felix Frankfurter did not take part in this decision.

Effect of the Decision

This case held that a state cannot pass a law that states that merely being “mentally ill, or a leper, or to be afflicted with a venereal disease” due to narccotics will be considered an offense.

In Favor

In the representation of the side of the Robinson, attorney Samuel Carter McMorris said, “The present case, Robinson versus California, is of challenge to and attack upon Section 11721 of the Health and Safety Code of the State of California essentially because we feel that it is a denial of equal protection and due process in that it punishes a status rather than an act or omission, that it punishes an involuntary status, that it punishes a status of physical and mental illness, that it is vague, indefinite and uncertain upon its face, that double jeopardy is inherent in any crime of status and certainly in this — the present one and that this statute is unwarranted and unconstitutional infringement upon the freedom of movement, that it is ex post facto and that it imposes cruel and unusual punishment.

Now, because our case is essentially an attack upon the law itself, the most crucial fact we have before us is the nature and the content or the necessary and implicit application of this law.

However, because we have — aside or collateral issue or a secondary issue challenge also the search and seizure aspect of this case under the rule of Memphis, Ohio, the recent decision of this Court and because we also feel that under Thompson versus City of Louisville, there is an adequate evidence to sustain the conviction or in fact no evidence at all and hence a denial of due process.

The facts of the case will begin with the arrest itself.

On a chilly or cold night in February of 1960, the present appellant was riding as a passenger in the backseat of a car accompanied by his lady friend and other party named Banks and his wife were in the front seat, Banks being the driver.

The arresting officers testified that they stopped the vehicle because of an absence of rear license plate illumination.

We feel that the facts as testified by the arresting officers, negative of their excuse for the stoppage and that they actually presented three or four different reasons.

Secondly, we said that there was a car that driving slowly upon a dark unlit street and finally that they — that their — the territory in question had a reputation for person action and — interesting also that these officers were not traffic officers, though their original justification, the one accepted by the Court was a traffic stopping.

They were not traffic officers.

They’re not in a traffic car.

No citation for the traffic violation was given.

Nothing was said to the — to any party about driving too slowly, and this is admitted.

And as soon as the stopping took place, they began actually a search of the parties involved to see if they were narcotic addicts of which, they had no indication prior to the stopping of the vehicle.

So, since they were felony officers and were not traffic officers though we — we do not question the right of any officer to make a traffic stopping or arrest.

Since they were not traffic officers and did not have anything to do with traffic and stopping the car, we suspect that we have here the typical arrest, aroused arrest for the purpose of search to find whatever they might have found.

In fact, one of the officers testified that when the driver Banks got out of the car, he shined his light about this person to find whatever he could find.

And this of course is an admission of a general ex — search to see what evidence of any crime might have been there present.

But leave that as it may, upon the stopping, Banks left his vehicle and — and met the officer halfway.

And at this point, although it was a cold night of February and even of course the California nights are cold generally, certain in the month of February, this — this young man obligingly had his — no jacket on and his shirt sleeves rolled up so the arresting officer could see a single mark upon one of his arms, the right or the left as the case may have been.”


Then in opposition, representing the state of California, attorney William E. Doran claimed, “Mr. McMorris stated the appellant herein was convicted of 11721, Subsection of Health and Safety Code of California.

And also has he stated, the cause went to the jury only on two issues, use and addiction under the influence of that aspect of the — of the Section.

The court took from the jury my instructions.

I may say first getting directly to Mr. McMorris his main contention of purported unconstitutional status.

This addiction statute first became criminal in California in 1929 when it was added to the Penal Code as part of the Vagrancy Section.

In 1939, it was deleted from the Penal Code and the Vagrancy Section and put into the new Health and Safety Code which is connected I think at that time.

Since then, it has remained in the Health and Safety Code and has been amended from time-to-time in minor details.

In the briefs, both appellant and appellee have referred consistently to vagrancy probably because it’s the closest or the — the most usual, shall we say, statute under which a status is involved.

Now, its appellee’s contention that when this Section was removed from the Vagrancy Section in California and put into the Health and Safety Code, the only remaining aspect of vagrancy or even comparison to vagrancy that remained was the aspects of its status.

And it is our contention that thereafter, the ordinary ideas of vagrancy such as a — a tramp or a ne’er-do-well or a wonderer and such of the many common known types, we are not involved with the situation like that at all.

We are involved with a man who is putting a foreign fire into his veins, and it bears no relationship that we contented.

There is no further relationship to vagrancy except — except the peculiarity status.

Now, counsel has cited many of these vagrancy cases and of course we have cited them, too.

And he has referred to two particularly Lanzetta against New Jersey and Edelman against California.

The Lanzetta case involved vagrancy decided by this Court and it struck down the — the statute but not on the ground alone that it punished the status.

They struck him down because it was vague and indefinite in trying to define the status, it was going to punish.

The same in Edelman which this Court having taken jurisdiction didn’t decide the case on the merits but they were two dissenting opinions that went to the merits.

And the same thing shall I say happen there.

The California Vagrancy Statute was attacked but — on a very peculiar circumstances by which California or the City of Los Angeles in this instance utilized a Section 6475 of the Penal Code which proscribe, lewd and dissolute conduct making such person a vagrant, that’s the statement of the statute.

However, in that case, the Edelman case, they didn’t plead lewdness.

The pleading went only to dissolutes.

And it was an unfortunate situation no doubt because what they were trying to reach was something that the word “dissolute” as the two dissenting justices here held just shouldn’t reach.

And peculiarly enough and about the same time, the Appellate Department of Superior Court of Los Angeles from which the appellant of — from which the Edelman case came, decided another case unreported case of People against Dragna where they assumed practically the same position as assumed by the dissent in this Court to the effect that lewd and dissolute were used in the statutes anonymously.

And meant — they meant the same thing and as you couldn’t state an offense merely by the word ‘dissolute’.

Statue was aimed at lewdness.”


The majority opinion, written by Justice Potter Stewart, said, “This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted “at any time before he reforms.” California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See Francis v. Resweber, 329 U.S. 459.

We cannot but consider the statute before us as of the same category. In this Court, counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily.We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.

We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of government. There are, as we have said, countless fronts on which those evils may be legitimately attacked. We deal in this case only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.”

Then in dissent, Justice Tom Clark wrote, “It is no answer to suggest that we are dealing with an involuntary status, and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often, or even daily, but not to the point of losing self-control. When dealing with involuntary addicts, California moves only through § 5355 of its Welfare Institutions Code, which clearly is not penal. Even if it could be argued that § 11721 may not be limited to volitional addicts, the petitioner in the instant case undeniably retained the power of self-control, and thus, to him, the statute would be constitutional. Moreover, ‘status’ offenses have long been known and recognized in the criminal law. 4 Blackstone, Commentaries (Jones ed. 1916), 170. A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of drugs.

Nor is the conjecture relevant that petitioner may have acquired his habit under lawful circumstances. There was no suggestion by him to this effect at trial, and surely the State need not rebut all possible lawful sources of addiction as part of its prima facie case.

The argument that the statute constitutes a cruel and unusual punishment is governed by the discussion above. Properly construed, the statute provides a treatment, rather than a punishment. But even if interpreted as penal, the sanction of incarceration for 3 to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition posing a serious threat to the State. Under either theory, its provisions for 3 to 12 months’ confinement can hardly be deemed unreasonable when compared to the provisions for 3 to 24 months’ confinement under § 5355 which the majority approves.”

Also in dissent, Justice Byron White wrote, “The Court has not merely tidied up California’s law by removing some irritating vestige of an outmoded approach to the control of narcotics. At the very least, it has effectively removed California’s power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond this, it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment. I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances. But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another case.

Finally, I deem this application of ‘cruel and unusual punishment’ so novel that I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court’s allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.”

My Opinion:

In this case, I agree with the majority opinion. People can get very dependent and addicted to certain drugs. There have been many situations in which one’s addiction was out of their control. Some addictions are not necessarily the person’s fault. For example, if someone was injured and prescribed painkillers, and the patient unknowingly grew dependent on the painkillers, that’s not their fault and they should not be punished with 90 days in jail for something like that. The punishments should vary accordingly to the situation and not be based off of the fact that a person is addicted to a certain narcotic. 90 days in jail for an unintentional addiction would be a violation of the Eighth Amendment, because they should not be penalized for something like that with something so extreme. That would be categorized under being a “cruel and unusual punishment.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right