345 F.

2d 256

UNITED STATES of America, Appellee,

v.
Frank Warren PRICE and William Riley, DefendantsAppellants.
No. 222, Docket 29123.

United States Court of Appeals Second Circuit.

Argued Nov. 10, 1964.
Decided May 17, 1965.

Leonard J. Theberge, Asst. U.S. Atty. (Joseph P. Hoey, U.S. Atty. for
Eastern District of New York, Brooklyn, N.Y., on the brief), for appellee.
Gretchen White Oberman, New York City (Anthony F. Marra, New York
City, on the brief), for defendants-appellants.
Before SWAN, WATERMAN and MOORE, Circuit Judges.
MOORE, Circuit Judge.

Frank Price and William Riley were indicted for possessing an unregistered
still, 26 U.S.C.A. 5179(a), fermenting mash for alcohol in an unauthorized
distillery, 26 U.S.C.A. 5222(a)(1), carrying on a distillery business without the
required bond, 26 U.S.C.A. 5173(a), (b), and conspiring to violate all of the
above laws, 18 U.S.C.A. 371. After a nonjury trial before Judge Rayfiel, they
were both convicted and sentenced to 30 days' imprisonment on each count, to
run concurrently.

On this appeal Price and Riley raise no question as to the sufficiency of the
evidence. Rather, they claim that certain items of evidence were inadmissible
and should have been suppressed either on their motion to suppress, decided
after a hearing by Judge Dooling (unreported), or on trial. They argue that this
evidence was the result of an unlawful search and seizure, that Price's arrest
was invalid, and that certain admissions were tainted by these infirmities and by
unnecessary delay in arraignment. The material facts are not in dispute.

The Alcohol and Tobacco Tax Unit (ATTU) received a tip from an informer
that an illegal still was being operated at 146-12 106th Avenue in Jamaica, New
York. Shortly thereafter federal officers began surveillance of that building
from a school across the street. A few days later officers LaPerch, Boylan and
Ginley, who had begun watching in late afternoon, at 8:30 in the evening saw a
man carrying a heavy-looking package leave No. 146-12. The officers tried to
follow, but they lost him. He returned at 10:00 P.M. At 10:30 P.M. he left again
carrying a similar heavy-looking package. The officers again followed him. He
saw them, started to run, threw down the package, and fell down. Boylan
smelled and tasted the contents, some of which remained in the broken
fragments of a bottle that had been in the package. He determined the liquid to
be corn whiskey. The bottle had no stamp tax affixed. LaPerch, after tasting and
smelling the contents, verified Boylan's conclusion. The officers arrested the
man, who identified himself as Riley. Riley first said that he obtained the
whiskey from a man on the corner. LaPerch then told him, 'Don't lie to us. You
don't have to tell us, but if you do, we can use it against you. We were watching
you.'1 Riley thereupon said he obtained the whiskey from a man on the second
floor of No. 146-12, and he agreed to take the officers there.

After entering the common entranceway on the ground floor, through the
unlocked door, the officers noticed heat and the smell of mash, both of which
increased as they climbed the stairs. LaPerch approached the rear apartment on
the second floor and saw a woman standing in the hall before the fully opened
door of the apartment. From the hall could be seen a sheet hanging over a
doorway off the parlor. LaPerch asked the woman where the still was and she
stepped back, saying nothing. LaPerch and Ginley passed her and entered
through the open door into the parlor. Not finding the man they walked through
the sheeted door, which led to the kitchen. A 50-gallon still was operating there
and many one-gallon bottles were evident-- some apparently with whiskey and
some without. Boylan and Riley were let in through a kitchen door, and Boylan
heard a noise in a room off the kitchen. Under a blanket he found a man who
said that he was Price, that he lived there, and that he owned the still. Price was
then arrested; the time was about 11:00 P.M.

The agents took samples from the still and seized some components. They then
destroyed the still. This took about an hour. Price and Riley were then taken to
a local police precinct where they remained for an hour. They were not
questioned. The next hour or so was taken up driving to Manhattan. Prior to
being lodged overnight at the Federal House of Detention they were taken to
the ATTU office for routine processing. Price there made a statement which
took almost an hour to record and type. He signed it at about 4:30 A.M. During
these hours Price and Riley seem to have been asked some questions

sporadically, but had not at all been subjected to constant interrogation. About
10:00 A.M. the next day they were taken to the United States Court House
where an Assistant U.S. Attorney drew up the complaint to be used before the
Commissioner. During the part of an hour it took to dictate and type the
complaint Riley was asked a few questions. He was advised of his
Constitutional right to remain silent, and he neither requested nor was denied
the opportunity to consult with counsel. He then confessed orally that he and
Price were partners in running the still. Then, at 11:00 A.M. they were
arraigned.
I.
6

An ATTU officer may 'make arrests without warrant for any offense against
the United States relating to the internal revenue laws committed in his
presence, or any felony cognizable under such laws if he has reasonable
grounds to believe that the person to be arrested has committed, or is
committing any such felony.' 26 U.S.C.A. 7608(b)(2), (B). Having such
'reasonable grounds,' the equivalent of 'probable cause,' see Draper v. United
States, 358 U.S. 307, 310 & n. 3, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), an officer
may enter the defendant's premises in order to effectuate the arrest.2

The legality of the arrest depends, then, upon whether, when entering the
apartment,3 the officers had probable cause to believe that the person to be
arrested had committed, or was committing, a felony relating to the Internal
Revenue laws. Here the record quite justifies Judge Dooling's conclusion that,
at the apartment threshold, as stated in Brinegar v. United States, 338 U.S. 160,
175-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949): " the facts and
circumstances within their (the officers') knowledge and of which they had
reasonably trustworthy information (are) sufficient in themselves to warrant a
man of reasonable caution in the belief that' an offense has been or is being
committed. Carroll v. United States, 267 U.S. 132, 162 (45 S.Ct. 280, 69 L.Ed.
543),' that is, inside was a man who had possessed or still possessed untaxpaid
whiskey in violation of 26 U.S.C.A. 5205(a). The officers had an informer's tip
that an illegal still was being operated there,4 and with an illegal still there is
usually a person possessing bootleg whiskey. They had twice seen Riley
leaving No. 146-12 with similar heavy packages, at least the second one of
which they knew contained such whiskey. They had Riley's statement that he
had obtained the whiskey from a man on the second floor of No. 146-12.5 They
had their own observations of intense heat and a mash smell within No. 146-12,
increasing as they neared the second floor, and, visible through the open door,
the doorway so strangely sheeted for an August evening in Queens.6 This all
furthered the probability that Riley's supplier was still there tending his still.

And corroborating that probability, they had the actions of the woman,
suggesting that the still and its operator were inside that apartment. All of this
can scarcely be brushed aside as 'mere suspicion,' Henry v. United States, 361
U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), or as being 'flimsy and * * *
unconvincing,' Di Bella v. United States, 284 F.2d 897, 905 (2d Cir. 1960)
(Waterman, J., dissenting), vacated on other grounds, 369 U.S. 121, 82 S.Ct.
654, 7 L.Ed.2d 614 (1962). The officers had gone from the street to No. 146-12
to apprehend the man who had just supplied whiskey to Riley. Probable cause
to believe that he was in the apartment at No. 146-12 increased with every step.
It was certainly not diminished by the fact that once within the entryway the
officers might also have had probable cause to believe that additional felonies
had been or were being committed-- the operation of an illegal still-- nor by the
fact that the location and seizure of the still then became an additional purpose
of entering the apartment. Cf. Harris v. United States, 331 U.S. 145, 154-155,
67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Rabinowitz, 339 U.S. 56,
63, 70 S.Ct. 430, 94 L.Ed. 653 (1950). On the contrary, probable cause was
strengthened.
8

It was incumbent upon the agents, if they were to act as law enforcement
officers, to follow through while they had every reason to believe that the crime
was being committed. If they acted immediately upon all the facts then known
to them, it was more than probable that the vendor would be found at the
location which Riley had just left. If they had returned to New York or
Brooklyn, waited until the next morning to visit a Commissioner, narrated their
story in affidavit form, obtained warrants for arrest and search and seizure and
then revisited the scene of their surveillance, it would have been less than
probable that the vendor would have been patiently awaiting their arrival. Riley
by telephone or otherwise could have given his vendor more adequate notice.
Courts should not blind themselves to reality. The narcotics and alcohol
vendors do not set up shop in the open market place to dispense their wares.
The entry and seizure in these circumstances were not unreasonable.

This is not a case like Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2
L.Ed.2d 1514 (1958), where the agents brushed aside defendant's wife and little
boy to make a forcible entry solely to seize a still. In Jones, as the Court noted,
since the agents had been told that Jones was not within, 'their purpose in
entering was to search for the distilling equipment, and not to arrest * * *' him.
357 U.S. at 500, 78 S.Ct. at 1257. Here, however, the officers were fully
justified in believing that they would find within the man from whom Riley had
obtained the whiskey.

10

Nor do we find in this case the 'grave constitutional question' that troubled

Justice Harlan in Jones. The unknown identity and possible flight demonstrate
'why an arrest warrant could not have been sought * * *.' Ibid. Moreover, the
entry here, unlike that in Jones, was entirely peaceful.7 The absence of a
forcible, fraudulently obtained, or stealthy entry serves to further distinguish
this case from cases like Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776,
5 L.Ed.2d 828 (1961); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191,
93 L.Ed. 153 (1948); Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76
L.Ed. 951 (1932).
11

Nor is this case governed by Johnson v. United States, 333 U.S. 10, 68 S.Ct.
367, 92 L.Ed. 436 (1948), although on first blush there are similarities. In that
case, one of the elements of probable cause conceded by the government to be
necessary was not determinable until the officers had made their entry. The
protections of the Fourth Amendment cannot be circumvented by such a
justification of an entry. Here, however, probable cause existed without any
reference to knowledge gained after the entry.

12

Reasonable procedures for arrest on probable cause do not always require that
the officers know the suspect's pedigree, so that information obtained after
entry was not in this case an indispensable element of probable cause. And at
the time the officers entered to make the arrest, they could not be assured that
Price would be under a blanket in a back room rather than preparing to escape
out the back door. It is easy for courts after the fact to hypothesize what might
have been done. The crucial inquiry, however, is whether viewing objectively
and impartially the facts known to the officers when they acted, their conduct
was reasonable. Walking completely peacefully through an open door to arrest
a man whom they had reason to believe had just possessed untaxpaid whiskey
was assuredly reasonable conduct. Even if, as our dissenting colleague feels
(with which speculation we disagree), issuance of an arrest warrant was
practicable, the Supreme Court has indicated that practicability is not at all
determinative. Compare United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct.
430, 94 L.Ed. 653 (1950), with Trupiano v. United States, 334 U.S. 699, 68
S.Ct. 1229, 92 L.Ed. 1663 (1948). Moreover, it is far from clear that it would
have been practicable, even less, wise, for the officers to deploy themselves in a
way which would more readily permit the supplier to escape. After all,
surveillance of a multiple dwelling in a developed section of Queens is a far cry
from guarding an isolated farmhouse or the like in an open field.

13

As the entry and the arrest were lawful, so were the search and seizure. They
saw only what was unavoidable in their pursuit of Price, and they seized only
what the most perfunctory search incidental to the arrest of Price revealed.
Compare Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d

431 (1965).
II.
14

Defendants argue that the two statements by Price and the one by Riley should
have been suppressed because they were tainted by the alleged illegality of the
entry, arrest, search and seizure. See Nardone v. United States, 308 U.S. 338,
341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The argument falls, however, with our
conclusion that the entry and arrest were lawful.

15

They also argue that Price's written statement later that evening and Riley's oral
statement the next morning are inadmissible under the holding of Mallory v.
United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
Mallory might apply if the officers were shown to have delayed arraignment
for the sole purpose of subjecting them to constant interrogation, or had not
informed them of their constitutional rights. See Ricks v. United States, 118
U.S.App.D.C. 216, 334 F.2d 964 (1964); cf. Escobedo v. State of Illinois, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). But this case is quite different.
The destruction of the still was imperative and took considerable time, during
which there does not appear to have been any interrogation. Nor was there any
interrogation while the defendants were left at the local precinct. Although
there were some questions asked while defendants were being transported to
New York, that time interval would seem unavoidable. The defendants were
taken to ATTU headquarters for routine processing that evening. However, the
visit did not result in the 'unnecessary delay' with which Fed.R.Crim.P. 5(a) and
Mallory are concerned. At that hour no Commissioner would have been in his
office and 'there has been no claim that a commissioner was available' then.
United States v. Ladson, 294 F.2d 535, 537 n. 1 (2d Cir. 1961), cert. denied,
369 U.S. 824, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). Compare United States v.
Middleton, 344 F.2d 78 (2d Cir. 1965). Thus, Price's statement was properly
admitted against him. The same reasoning applies to the 45 minutes or so
during which the complaint was drawn up and Riley made his oral statement,
so that statement was also properly admitted against him.

16

Judgment affirmed.

17

WATERMAN, Circuit Judge (dissenting).

18

I respectfully dissent from the affirmance of these convictions, and I would

remand for a new trial. Although I do not disagree with the majority opinion in
all respect, I do with the greater part of it.

19

Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)
governs here. In that case the police 'received information from a confidential
informer, who was also a known narcotic user, that unknown persons were
smoking opium in the Europe Hotel.' Four narcotic agents went to the hotel 'and
recognized at once a strong odor of burning opium which to them was
distinctive and unmistakable. The odor led to Room 1. The officers did not
know who was occupying that room.' They knocked, identified themselves,
were admitted, arrested the room's lone occupant, searched the room, and
seized incriminating evidence. Id. at 12, 68 S.Ct. at 368.

20

In Johnson the Court held that the search had not been conducted pursuant to a
lawful arrest. 'The arresting officer did not have probable cause to arrest
petitioner until he had entered her room and found her to be the sole occupant.'
Id. at 16, 68 S.Ct. at 370. Moreover, there was no element of hot pursuit 'in the
arrest of one who was not in flight, was completely surrounded by agents
before she knew of their presence, who claims without denial that she was in
bed at the time, and who made no attempt to escape.' Id. at 16 n. 7, 68 S.Ct. at
370. 'Thus the Government is obliged to justify the arrest by the search and at
the same time to justify the search by the arrest. This will not do.' Id. at 16-17,
68 S.Ct. at 370.

21

Here, defendant Riley, a person unknown to the arresting officers, but found in
possession of unstamped whiskey, told them that he had obtained the whiskey
from a 'man' on the second floor of 146-12 106th Avenue. The officers went to
that address and recognized the distinctive and unmistakable heat and odor their
experience prompted them to believe was characteristic of a kitchen-based
distillery. These observations led them to the rear dwelling apartment on the
second floor. They entered the dwelling apartment without consent, arrested its
only occupant, defendant Price, and seized the still in the apartment kitchen.

22

At no time until they entered his home and found him did the officers know the
name, appearance, or background of the 'man' who supposedly furnished the
unstamped whiskey to Riley, and who was presumably tending the still which
the officers discovered after entry into the apartment. Thus, as in Johnson v.
United States, supra, one of the elements of probable cause assumed to be
necessary was not determinable until the officers had made their entry. Cf.
Wong Sun v. United States, 371 U.S. 471, 481 n. 9, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963). Nor can the precipitous actions of the arresting officers be justified
by the need to prevent Price's escape, for at the time of his arrest he was hiding
under a blanket, clad only in his underwear, and smiling.
By use of a jeweler's scale with the most delicate of balances one might

23

23

possibly detect in the facts of this case some flyspeck of probable cause absent
from Johnson v. United States, supra, where the smell was of opium rather than
of a brew of corn whiskey, but this is not a fitting occasion for such refined
perceptions. Price was arrested in his own dwelling, at 10:30 at night, by
officers who had gained entry without his consent, without any announcement,
and without an arrest warrant. Moreover, despite the contrary admonitions of
my colleagues, there was no justification for dispensing with the appropriate
warrants. The officers had had the building under surveillance for several days,
and they could assuredly have continued their watch on the rear apartment so as
to prevent an escape by any occupant of it or a destruction of the still, during
the few additional hours necessary to procure any warrants to which they were
entitled. We 'should not blind (ourselves) to reality,' or worry that, before the
officers could obtain warrants, the handcuffed Riley, safely in the physical
custody of the officers, would telephone or otherwise warn Price of the
impending raid upon the privacy of his home.

24

Thus the case draws us perilously close to the 'grave constitutional question'
described by Justice Harlan in Jones v. United States, 357 U.S. 493, 499-500,
78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958):

25

'Namely, whether the forceful nighttime entry into a dwelling to arrest a person
reasonably believed within, upon probable cause that he had committed a
felony, under circumstances where no reason appears why an arrest warrant
could not have been sought, is consistent with the Fourth Amendment.'

26

Furthermore, as I noted in Di Bella v. United States, 284 F.2d 897, 908-909 (2

Cir. 1960) (dissenting opinion), rev'd on other grounds, 369 U.S. 121, 82 S.Ct.
654, 7 L.Ed.2d 614 (1962):

27

'Rule 41(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., provides

that a search warrant shall be restricted to daytime execution unless the
affidavit indicates positively that the objects to be seized are upon the premises.
* * * In Jones v. United States, 1958, 357 U.S. 493, 498-499 (78 S.Ct. 1253, 2
L.Ed.2d 1514), the Supreme Court stated, by Justice Harlan, that the provisions
relative to nighttime search in Rule 41(c) are 'hardly compatible with a
principle that a search without a warrant can be based merely upon probable
cause.' To be sure, the probable cause the Court was there discussing was
probable cause for the existence of objects of seizure rather than probable cause
to justify an arrest. But I see no difference in principle between the two
situations.'

28

While I do not rely squarely on either of these statements from Jones for this

28

While I do not rely squarely on either of these statements from Jones for this
dissent, they at least warn me that, particularly in the circumstances of the
present case, we should beware of straining to distinguish relevant Supreme
Court definitions of probable cause.

29

Because Price's arrest was unlawful, the search of his apartment was unlawful
as well, and the items such as the corn whiskey malt samples and the remnants
of the still (which took an hour for the agents to destroy) seized in the course of
that search, as well as the testimony of the agents relative thereto, should not
have been admitted as evidence against him. Weeks v. United States, 232 U.S.
383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The statement made by Price just prior
to his arrest, which resulted directly from the unlawful search of his apartment,
should have been excluded on the same authority, Wong Sun v. United States,
supra, 371 U.S. at 484-486, 83 S.Ct. at 415-417, as well as his second
statement, made only five and one-half hours later, after he had been held in
continuous custody and had been subjected to intermittent interrogation, id. at
487-488, 83 S.Ct. at 417-418.

30

As for Riley, since he was indicted and tried for possession of the still, he too
has standing to object to the admission of the seized items and the officers'
testimony relating thereto as evidence against him. Jones v. United States, 362
U.S. 257, 261-264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). On the other hand, I
concur with my colleagues that his statement made the following morning was
not improperly admitted against him, for it can plausibly be viewed, not as a
consequence of the unlawful arrest and search in Price's apartment, but as the
product of Riley's own prior arrest for possession of unstamped whiskey, and of
the officers' observations before they entered the apartment, both of which were
obtained in an unquestionably valid manner. See Nardone v. United States, 308
U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Furthermore, this statement
cannot be excluded on the ground that it was procured in violation of
Fed.R.Crim.P. 5(a), for Riley makes no claim that the short period of delay in
his presentation, after a commissioner became available, was systematically
exploited for the purpose of eliciting a confession from him. Compare United
States v. Middleton, 344 F.2d 78 (2 Cir. 1965).

LaPerch and Boylan so testified at the hearing of the motion to suppress, and
Judge Dooling so found. At trial, Boylan apparently testified that LaPerch 'told
Riley not to lie, if he said nothing it could be used against him; but we have
been watching him.' That this difference in phraseology was only inadvertent is
suggested by the fact that on the renewed motion to suppress, after all the
evidence was in, counsel for defendants agreed that 'the testimony introduced

then (before Judge Dooling) is, substantially, the same as introduced today * *
* except for one addition.' The only additions mentioned were the introduction
of statements made after the arrest, and LaPerch's testimony about the actual
entry of the apartment
2

Of course, mere 'belief, however, well founded, that an article sought is

concealed within a dwelling house, furnishes no justification for a search of that
place without a warrant. * * * notwithstanding facts unquestionably showing
probable cause' to search. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4,
6, 70 L.Ed. 145 (1925). This is one reason why 'an objective predetermination
of probable cause' is usually required, thereby avoiding the 'less reliable
procedure of an after-the-event justification for the arrest or search, too likely to
be subtly influenced by the familiar shortcomings of hindsight judgment.' Beck
v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).
Nor can an entry and search be justified as incidental to a lawful arrest remote
in time and place. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11
L.Ed.2d 777 (1964)

Defendants do not claim that Price's privacy was invaded as soon as the officers
entered the open door to the common hallway, and with good reason. See
United States v. Miguel, 340 F.2d 812, 814 (2d Cir. 1965). Thus we need not
consider whether probable cause existed at that time

It is true that the informer's reliability was apparently not known when the tip
was received, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1962); for this reason, the officers quite probably could not have
obtained a warrant prior to the events of that evening. See Aguilar v. State of
Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). But by the time of
the entry, corroboration was supplied by Riley's emergence from 146-12 with
bootleg whiskey and by the heat and smell of mash. See United States v.
Rivera, 321 F.2d 704, 708-709 (2d Cir. 1963); United States v. Smith, 308 F.2d
657, 662-663 (2d Cir. 1962) (Waterman, J.), cert. denied, 372 U.S. 906, 83
S.Ct. 717, 9 L.Ed.2d 716 (1963)

As with the informer, see note 4 supra, Riley's reliability was corroborated by
the agents' own observations of him that evening, and the suggestion that,
although he need say nothing, he should not lie. This, and the greater specificity
of the guidance given to the officers, serve to distinguish Riley's information
from that given by Hom Way in Wong Sun

While we do not mean to suggest that the open door per se gave the officers
more authority to enter than they would otherwise have had, they were
unquestionably able to use what it allowed them to see, feel and smell from

without. Cf. United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed.
1202 (1927). In addition, the fact that the door was open, although a still
seemed to be presently in operation, would certainly suggest that the man who
had possessed Riley's whiskey was still within the apartment
7

Defendants do not claim that the officers' failure to knock and announce their
authority and purpose before entering invalidated the entry. Therefore we need
not consider whether this entirely peaceful entry through an open door would
be subject to the same requirements as a forcible 'breaking,' see Miller v. United
States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); cf. 18 U.S.C.A.
3109. Compare Blakey, The Rule of Announcement and Unlawful Entry:
Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 494, 558 (1964),
with Ker v. State of California, 374 U.S. 23, 47, 83 S.Ct. 1623, 10 L.Ed.2d 726
(1963) (Brennan, J., dissenting)