CARROLL v. UNITED STATES.
267 US 132, 69 LED 543
GEORGE CARROLL and John Kiro, Plffs. in Err.,
v
UNITED STATES.
(See S. C. Reporter's ed. 132‑175.)
[No. 15.]
Argued December 4, 1923.
Restored to docket for reargument January 28, 1924. Reargued and resubmitted March 14,
1924. Decided March 2, 1925.
Opinion
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Search and seizure ‑‑ effect of 4th Amendment.
1. The search, without
warrant, of an automobile engaged in the illegal transportation of intoxicating
liquor, is not prohibited by the 4th Amendment to the Federal Constitution.
Search and seizure ‑‑ when valid without warrant.
2. If a search and
seizure without warrant are made upon probable cause, that is, upon the belief,
reasonably arising out of circumstances known to the seizing officer, that an
automobile or other vehicle contains that which, by law, is subject to seizure
and destruction, the search and seizure are valid.
Constitutional law ‑‑ construction ‑‑
search and seizure.
3. The 4th Amendment to
the Federal Constitution is to be construed in the light of what was deemed to
be an unreasonable search and seizure when it was adopted, and in a manner
which will conserve public interests as well as interests and rights of
individual citizens.
Search and seizure ‑‑ on international boundary.
4. Travelers crossing an
international boundary may be stopped and their vehicle searched without
warrant, because of national self‑protection reasonably requiring one
entering a country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in.
Search and seizure ‑‑ right to undisturbed passage on
highways.
5. Those lawfully within
the United States, entitled to use the public highways, have a right to free
passage without interruption or search, unless there is known to a competent
officer authorized to search, probable cause for believing that their vehicles
are carrying contraband or illegal merchandise.
Search and seizure ‑‑ what determines right.
6. The rule for
determining what may be required before a seizure may be made by a competent
seizing officer for unlawful transportation of intoxicating liquor does not
depend on the character of the penalty to which the transporter may be
subjected.
Officers ‑‑ liability for wrongful seizure.
7. If an officer seizes
an automobile or the liquor in it without a warrant, and the facts, as
subsequently developed, do not justify a judgment of condemnation or
forfeiture, the officer may, under the provisions of U. S. Rev. Stat. § 970,
escape costs or a <*pg.544> suit for damages by a showing that he had reasonable or probable
cause for seizure.
Search and seizure ‑‑ of automobile ‑‑
when legal.
8. The seizure, without
warrant, of an automobile for the illegal transportation of intoxicating
liquor, is legal if the seizing officer has reasonable or probable cause for
belief that there is contraband liquor therein, which is being illegally
transported.
Search and seizure ‑‑ necessity and effect of warrant.
9. Where the securing of
a warrant before seizure of property being transported on a highway is
reasonably practicable, it must be secured, and, when properly supported by
affidavits and issued after judicial approval, it protects the seizing officer
against a suit for damages.
Arrest ‑‑ without warrant ‑‑ when legal.
10. Generally, a police
officer may arrest without warrant one believed by him, upon reasonable cause,
to have been guilty of felony, and he may arrest without warrant one guilty of
misdemeanor only if it is committed in his presence.
Criminal law ‑‑ discretion as to classification of
offenses.
11. Congress may
exercise a relatively wide discretion in classifying particular offenses as
felonies or misdemeanors.
Search and seizure ‑‑ right to act on previous
information.
12. Under the provision
of the National Prohibition Law authorizing an officer to seize liquor when he
discovers any person in the act of transporting it in violation of law, it is
not necessary that he learn of the unlawful transportation by the present
evidence of his senses, but he may act on identification of a car which he has
been previously informed is engaged in such transportation.
Search and seizure ‑‑ property in possession of one
under arrest.
13. When a man is legally
arrested for an offense, what is found upon his person, or in his control,
which it is unlawful for him to have, and which may be used to prove the
offense, may be seized and held as evidence in the prosecution.
Search and seizure ‑‑ necessity of right to arrest.
14. The right to search
for and seize, without warrant, intoxicating liquor being transported along a
public highway, does not depend upon the right to arrest the one in charge of
it.
Evidence ‑‑ judicial notice ‑‑ location
and activities of cities.
15. The court takes
judicial notice of the fact that Grand Rapids is about 152 miles from Detroit,
and that Detroit is one of the most active centers for introducing illegally
into this country spirituous liquors for distribution into the interior.
Search and seizure ‑‑ what is probable cause.
16. Officers engaged in
patrolling for seizure of contraband liquor a highway along which liquor is
transported may seize and search, without warrant, an automobile of persons
whom they knew, or have convincing evidence to make them believe, are plying
the unlawful trade of transporting and selling such liquor, and which is the
same car which they used in trying to fill an order for liquor to the officers
themselves a short time before, and is, at the time, coming from known sources
of liquor supply, and it is immaterial that the officers were not looking for
them at the time, and that the liquor was so concealed as not to be evident to
the senses of the officers.
Evidence ‑‑ property seized without warrant ‑‑
effect of showing at trial.
17. If the evidence at
the trial is sufficient to justify refusal to return property seized without
warrant, it may be introduced in evidence, although the evidence may have been
insufficient to warrant such refusal when application was made for the return.
ON WRIT of Error to the
District Court of the United States for the Western District of Michigan to
review a judgment convicting defendants of illegal transportation of
intoxicating liquor.
Affirmed.
Statement by Mr. Chief Justice Taft:
This is a writ of error
to the district court under § 238 of the Judicial Code. The plaintiffs in error, hereafter to be
called the defendants, George Carroll and John Kiro, were indicted and
convicted for transporting in an automobile intoxicating spirituous liquor, to
wit: 68 quarts of so‑called
bonded whisky and gin, in violation of the National Prohibition Act. The ground on which they assail the
conviction is that the trial court admitted in evidence two of the sixty‑eight
bottles, one of whisky and one of gin, found by searching the automobile. It is contended that the search and seizure
were in violation of the 4th Amendment, and therefore that use of the liquor as
evidence was not proper. Before the
trial a motion was made by the defendants that all the liquor seized be
returned to the defendant Carroll, who owned the automobile. This motion was denied.
The search and seizure
were made by Cronenwett, Scully, and Thayer, Federal <*pg.545> prohibition agents, and
one Peterson, a state officer, in December, 1921, as the car was going westward
on the highway between Detroit and Grand Rapids, at a point 16 miles outside of
Grand Rapids. The facts leading to the
search and seizure were as follows: On
September 29th, Cronenwett and Scully were in an apartment in Grand
Rapids. Three men came to that
apartment, a man named Kruska, and the two defendants,
[267 US
135]
Carroll and Kiro. Cronenwett was introduced to them as one
Stafford, working in the Michigan Chair Company in Grand Rapids, who wished to
buy three cases of whisky. The price
was fixed at $130 a case. The three men
said they had to go to the east end of Grand Rapids to get the liquor, and that
they would be back in half or three quarters of an hour. They went away and in
a short time Kruska came back and said they could not get it that night, that
the man who had it was not in, but that they would deliver it the next
day. They had come to the apartment in
an automobile known as an Oldsmobile roadster, the number of which Cronenwett
then identified, as did Scully. The
proposed vendors did not return the next day, and the evidence disclosed no
explanation of their failure to do so. One may surmise that it was suspicion of
the real character of the proposed purchaser, whom Carroll subsequently called
by his first name when arrested in December following. Cronenwett and his subordinates were engaged
in patrolling the road leading from Detroit to Grand Rapids, looking for
violations of the Prohibition Act. This
seems to have been their regular tour of duty.
On the 6th of October, Carroll and Kiro, going eastward from Grand
Rapids in the same Oldsmobile roadster, passed Cronenwett and Scully some
distance out from Grand Rapids.
Cronenwett called to Scully, who was taking lunch, that the Carroll boys
had passed them, going toward Detroit, and sought with Scully to catch up with
them, to see where they were going. The officers followed as far as East
Lansing, halfway to Detroit, but there lost trace of them. On the 15th of December, some two months
later, Scully and Cronenwett, on their regular tour of duty with Peterson, the
state officer, were going from Grand Rapids to Ionia, on the road to Detroit,
when Kiro and Carroll met and passed them in the same automobile, coming from
the direction of Detroit to Grand Rapids.
The government agents turned
[267 US
136]
their car and followed the
defendants to a point some 16 miles east of Grand Rapids, where they stopped
them and searched the car. They found behind the upholstering of the seats, the
filling of which had been removed, sixty‑eight bottles. These had labels on them, part purporting to
be certificates of English chemists that the contents were blended Scotch
whiskies, and the rest, that the contents were Gordon gin, made in London. When an expert witness was called to prove
the contents, defendants admitted the nature of them to be whisky and gin. When the defendants were arrested, Carroll
said to Cronenwett, "Take the liquor and give us one more chance and I
will make it right with you," and he pulled out a roll of bills, of which
one was for $10. Peterson and another
took the two defendants and the liquor and the car to Grand Rapids, while Cronenwett,
Thayer, and Scully remained on the road, looking for other cars, of whose
coming they had information. The
officers were not anticipating that the defendants would be coming through on
the highway at that particular time, but when they met them there they believed
they were carrying liquor; and hence the search, seizure, and arrest.
Mr. Thomas E. Atkinson argued the cause on original argument for
plaintiffs in error.
Messrs. Thomas E. Atkinson and Clare J. Hall submitted the cause on
final argument for plaintiffs in error.
Mr. James A. Lombard was on the brief:
The arrest was illegal.
Kurtz v. Moffitt, 115 U.
S. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148; Bad Elk v. United States, 177 U. S.
529, 44 L. ed. 874, 20 Sup. Ct. Rep. 729; Drennan v. People, 10 Mich. 187; Re
Way, 41 Mich. 299, 1 N. W. 1021; State v. Lutz, 85 W. Va. 330, 101 S. E. 434;
State v. Wills, 91 W. Va. 659,24 A.L.R. 1398 , 114 S. E. 261; State v. Pluth,
157 Minn. 145, 195 N. W. 789.
The search and seizure
were in violation of the constitutional rights of defendants.
Ex parte Jackson, 96 U.
S. 727, 24 L. ed. 877; People v. Margelis, 217 Mich. 423, 186 N. W. 488; State
v. Pluth, supra; State v. One Hudson Cabriolet Auto. 116 Misc. 399, 190 N. Y.
Supp. 482; Butler v. State, 129 Miss. 778, 93 So. 3; Taylor v. State, 129 Miss.
815, 93 So. 355; Hoyer v. State, 180 Wis. 407, 27 A.L.R. 673, 193 N. W. 89;
Jokosh v. <*pg.546> State, 181 Wis. 160, 193 N. W. 976; State v. Gibbons, 118 Wash.
171, 203 Pac. 391; United States v. Bateman, 278 Fed. 231.
The evidence should have
been suppressed and the liquor returned.
Weeks v. United States,
232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas.
1915C, 1177; Atz v. Andrews, 84 Fla. 43, 94 So. 329; State v. Myers, 36 Idaho,
396, 211 Pac. 440; People v. Brocamp, 307 Ill. 448, 138 N. E. 728; State v.
Harris, ____ Mo. App. ____, 250 S. W. 925; State ex rel. Samlin v. District Ct.
59 Mont. 600, 198 Pac. 362; State v. One Hudson Cabriolet Auto. 116 Misc. 399,
190 N. Y. Supp. 481; Gouled v. United States, 255 U. S. 298, 308, 309, 65 L.
ed. 647, 652, 653, 41 Sup. Ct. Rep. 261; Amos v. United States, 255 U. S. 313,
65 L. ed. 654, 41 Sup. Ct. Rep. 266; People v. Case, 220 Mich. 379, 27 A.L.R.
686, 190 N. W. 289; People v. Musk, 221 Mich. 578, 192 N. W. 485; People v. Hertz,
223 Mich. 170, 193 N. W. 781; People v. Preuss, 225 Mich. 115, 195 N. W. 684.
Assistant Attorney
General John W. H. Crim argued the
cause on original argument for defendant in error.
Solicitor General Beck argued the cause on reargument,
and, with Special Assistant to the Attorney General George Ross Hull, filed a
brief for defendant in error:
The search was authorized
by the National Prohibition Act.
United States v.
Friedman, 267 Fed. 856; United States v. Metzger, 270 Fed. 291; Com. v. Street
& Street, 3 Pa. D. & C. 783; United States v. Rembert, 284 Fed. 1006;
United States v. Bateman, 278 Fed. 233; United States ex rel. Soeder v.
Crossen, 264 Fed. 462; United States v. Daison, 288 Fed. 202; Lambert v. United
States, 282 Fed. 417.
The search and seizure
without warrant were permitted by the Constitution.
Boyd v. United States,
116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Gouled v. United States, 255
U. S. 298, 65 L. ed. 647, 41 Sup. Ct. Rep. 261; People v. Case, 220 Mich. 387,
27 A.L.R. 686, 190 N. W. 289; Mason v. Rollins, 2 Biss. 102; Fed. Cas. No.
9,252; Agnello v. United States, ____ A.L.R. ____, 290 Fed. 676; Lambert v.
United States, 282 Fed. 417; Green v. United States, 289 Fed. 238; Wakely v.
Hart, 6 Binn. 318; Re Powers, 25 Vt. 266; Ballard v. State, 43 Ohio St. 340, 1
N. E. 76, 5 Am. Crim. Rep. 36; Shovlin v. Com. 106 Pa. 369, 5 Am. Crim. Rep.
41; State v. Freeman, 86 N. C. 683; Com. v. Cheney, 141 Mass. 102, 55 Am. Rep.
448, 6 N. E. 724; Weeks v. United States, 232 U. S. 383, 392, 58 L. ed. 652,
655, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; Hughes v.
State, 145 Tenn. 566, 20 A.L.R. 639, 238 S. W. 588; 2 R. C. L. 468; Getchell v.
Page, 103 Me. 390, 18 L.R.A.(N.S.) 253, 125 Am. St. Rep. 307, 69 Atl. 624;
Holker v. Hennessey, 141 Mo. 540, 39 L.R.A. 165, 64 Am. St. Rep. 524, 42 S. W.
1090; State v. Mausert, 88 N. J. L. 286, L.R.A.1916C, 1014, 95 Atl. 991; State
v. Edwards, 51 W. Va. 230, 59 L.R.A. 465, 41 S. E. 429; Kneeland v. Connally,
70 Ga. 424; People v. Cona, 180 Mich. 651, 147 N. W. 525; State v. Hassan, 149
Iowa, 523, 128 N. W. 960; North v. People, 139 Ill. 107, 28 N. E. 966; United
States v. McBride, 287 Fed. 218; Ex parte Morrill, 35 Fed. 267; United States
v. Snyder, 278 Fed. 657; State ex rel. Thompson v. Reichman, 135 Tenn. 667, 188
S. W. 225, Ann. Cas. 1918B, 889; Hughes v. State, 145 Tenn. 571, 20 A.L.R. 639,
238 S. W. 588; United States v. Bateman, 278 Fed. 231; Robinson v. Richardson,
13 Gray, 456.
Automobiles may
reasonably be searched without warrant.
Com. v. Street &
Street, 3 Pa. D. & C. 783; Milam v. United States (decided Feb. 8, 1924,
not yet reported); People v. Case, 220 Mich. 383, 27 A.L.R. 686, 190 N. W. 289;
People v. De Cesare, 220 Mich. 417, 190 N. W. 302; People v. Margolis, 220
Mich. 431, 190 N. W. 306; United States v. Fenton, 268 Fed. 221; Com. v. Rubin,
Pa. Super. Ct. reported in Pittsb. L. J., Dec. 22, 1923, 921, 925.
The property seized was
the legitimate object of search and seizure.
Cooley, Const. Lim. 7th
ed. 431; Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821; People v. Bowen,
120 Misc. 342, 198 N. Y. Supp. 306; United States v. Welsh, 247 Fed. 239;
United States v. McBride, 287 Fed. 214; State v. Pauley, ____ N. D. ____, 192
N. W. 91; Com. v. Klein, 81 Pa. Super. Ct. 551; Com. v. Schwartz, Pa. Super.
Ct. Pittsb. L. J. Advance Sheets, Dec. 22, 1923, 927, 931; State v. Krinski, 78
Vt. 162, 62 Atl. 37; State v. Simmons, 183 N. C. 684, 110 S. E. 591; State v.
Chuchola, ____ Del. ____, 120 Atl. 212; Haywood v. United States, 268 Fed. 795;
O'Connor v. United States, 281 Fed. 396; United States v. Fenton, 268 Fed. 221;
United States v. O'Dowd, 273 Fed. 600; United States v. Hilsinger, 284 Fed.
585; <*pg.547>
United States v. Bateman, 278 Fed. 231; United States v. Snyder, 278 Fed. 650.
The arrest and search of
the defendants without a warrant is further justified by the fact that they
were engaged at the time in committing a crime in the presence of the officers.
Ex parte Morrill, 35 Fed.
267; United States v. Hilsinger, 284 Fed. 589; Green v. United States, 289 Fed.
238; United States v. McBride, 287 Fed. 218; United States v. Fenton, 268 Fed.
221; Lambert v. United States, 282 Fed. 413.
There was probable cause
for the search.
Green v. United States,
289 Fed. 238; United States v. Snyder, 278 Fed. 658; Burt v. Smith, 181 N. Y.
5, 73 N. E. 495, 2 Ann. Cas. 576; Runo v. Williams, 162 Cal. 451, 122 Pac.
1082; State ex rel. Neville v. Mullen, 63 Mont. 58, 207 Pac. 634; Mundal v.
Minneapolis & St. L. R. Co. 92 Minn. 30, 99 N. W. 273, 100 N. W. 363;
Michael v. Matson, 81 Kan. 360, L.R.A.1915D, 1, 105 Pac. 537.
The liquor which was
seized was properly admitted in evidence.
Boyd v. United States,
116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Weeks v. United States, 232
U. S. 383, 58 L. ed. 652, L.R.A.1915C, 834, 34 Sup. Ct. Rep. 341, Ann. Cas.
1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed.
319, 24 A.L.R. 1426, 40 Sup. Ct. Rep. 182; Gouled v. United States, 255 U. S.
298, 65 L. ed. 647, 41 Sup. Ct. Rep. 261.
Assuming that the search
was unlawful as to defendant Carroll, it was not as to defendant Kiro.
Wilson v. United States,
221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct. Rep. 538, Ann. Cas. 1912D, 558;
Dreier v. United States, 221 U. S. 394, 55 L. ed. 784, 31 Sup. Ct. Rep. 550;
Haywood v. United States, 268 Fed. 795.
Mr. Chief Justice Taft, after stating the case as above, delivered
the opinion of the court:
The constitutional and
statutory provisions involved in this case include the 4th Amendment and the
National Prohibition Act.
The 4th Amendment is, in
part, as follows:
"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 warrants
shall issue, 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."
Section 25, title II., of
the National Prohibition Act, October 28, 1919, chap. 85, 41 Stat. at L. 305,
315, Comp. Stat. § 10,138 1/2m, Fed. Stat. Anno. Supp. 1919, p. 213, passed to
enforce the 18th Amendment, makes it unlawful to have or possess any liquor
intended for use in violating the act, or which has been so used, and provides
that no property rights shall exist in such liquor. A search warrant may issue, and such liquor, with the containers
thereof, may be seized under the warrant and be ultimately destroyed. The section further provides:
"No search warrant
shall issue to search any private dwelling occupied as such unless it is being
used for the unlawful sale of intoxicating liquor, or unless it is in part used
for some business purpose such as a store, shop, saloon, restaurant, hotel, or
boarding house. The term 'private
dwelling' shall be construed to include the room or rooms used and occupied not
transiently but solely as
[267 US
144]
a residence in an
apartment house, hotel, or boarding house."
Section 26, title II.,
under which the seizure herein was made, provides in part as follows:
"When the
commissioner, his assistants, inspectors, or any officer of the law shall
discover any person in the act of transporting in violation of the law,
intoxicating liquors in any wagon, buggy, automobile, water or air craft, or
other vehicle, it shall be his duty to seize any and all intoxicating liquors
found therein being transported contrary to law. Whenever intoxicating liquors
transported or possessed illegally shall be seized by an officer he shall take
possession of the vehicle and team or automobile, boat, air or water craft, or
any other conveyance, and shall arrest any person in charge thereof."
The section then provides
that the court, upon conviction of the person so arrested, shall order the
liquor destroyed, and, except for good cause shown, shall order a sale by
public auction of the other property seized, and that the proceeds shall be
paid into the Treasury of the United States.
By § 6 of an act
supplemental to the National Prohibition Act, November 23, 1921, chap. 134, 42
Stat. at L. 222, 223, Comp. Stat. § 10,184a, Fed. Stat. Anno. Supp. 1921, p.
230, it is provided that if any officer or agent or employee of the <*pg.548> United States engaged in
the enforcement of the Prohibition Act or this Amendment "shall search any
private dwelling," as defined in that act, "without a warrant
directing such search," or "shall without a search warrant maliciously
and without reasonable cause search any other building or property," he
shall be guilty of a misdemeanor, and subject to fine or imprisonment or both.
In the passage of the
supplemental act through the Senate, Amendment No. 32, known as the Stanley
Amendment, was adopted, the relevant part of which was as follows:
"Section 6. That any officer, agent, or employee of the
United States engaged in the enforcement of this act, or
[267 US
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the National Prohibition
Act, or any other law of the United States, who shall search or attempt to
search the property or premises of any person without previously securing a
search warrant, as provided by law, shall be guilty of a misdemeanor and upon
conviction thereof shall be fined not to exceed $1,000, or imprisoned not to
exceed one year, or both so fined and imprisoned in the discretion of the
court."
This Amendment was
objected to in the House, and the Judiciary Committee, to whom it was referred,
reported to the House of Representatives the following as a substitute:
"Sec. 6. That no officer, agent or employee of the
United States, while engaged in the enforcement of this act, the National
Prohibition Act, or any law in reference to the manufacture or taxation of, or
traffic in, intoxicating liquor, shall search any private dwelling without a
warrant directing such search, and no such warrant shall issue unless there is
reason to believe such dwelling is used as a place in which liquor is
manufactured for sale or sold. The term
'private dwelling' shall be construed to include the room or rooms occupied not
transiently, but solely as a residence in an apartment house, hotel, or
boarding house. Any violation of any
provision of this paragraph shall be punished by a fine of not to exceed $1,000
or imprisonment not to exceed one year, or both such fine and imprisonment, in
the discretion of the court."
In its report the
committee spoke in part as follows:
"It appeared to the
committee that the effect of the Senate Amendment No. 32, if agreed to by the
House, would greatly cripple the enforcement of the National Prohibition Act,
and would otherwise seriously interfere with the government in the enforcement
of many other laws, as its scope is not limited to the Prohibition Law,
[267 US
146]
but applies equally to all
laws where prompt action is necessary.
There are on the statute books of the United States a number of laws
authorizing search without a search warrant.
Under the common law, and agreeable to the Constitution, search may, in
many cases, be legally made without a warrant.
The Constitution does not forbid search, as some parties contend, but it
does forbid unreasonable search. This
provision in regard to search is, as a rule, contained in the various state
constitutions, but, notwithstanding that fact, search without a warrant is permitted
in many cases, and especially is that true in the enforcement of liquor
legislation.
"The Senate
Amendment prohibits all search or attempt to search any property or premises
without a search warrant. The effect of
that would necessarily be to prohibit all search, as no search can take place
if it is not on some property or premises.
"Not only does this
Amendment prohibit search of any lands, but it prohibits the search of all
property. It will prevent the search of
the common bootlegger and his stock in trade, though caught and arrested in the
act of violating the law. But what is
perhaps more serious, it will make it impossible to stop the rum‑running
automobiles engaged in like illegal traffic.
It would take from the officers the power that they absolutely must have
to be of any service, for if they cannot search for liquor without a warrant,
they might as well be discharged. It is
impossible to get a warrant to stop an automobile. Before a warrant could be secured the automobile would be beyond
the reach of the officer, with its load of illegal liquor disposed of."
The conference report
resulted, so far as the difference between the two Houses was concerned, in
providing for the punishment of any officer, agent, or employee of the
government who searches a "private dwelling" without a warrant, and
for the punishment of any such officer,
[267 US
147]
etc., who searches any
"other building or property" where, and only where, he makes the
search without a warrant, "maliciously and without probable
cause." In other words, it left
the way open for searching an automobile, or vehicle of transportation, without
a warrant, if the search was not malicious or without probable cause.<*pg.549>
The intent of Congress to
make a distinction between the necessity for a search warrant in the searching
of private dwellings and in that of automobiles and other road vehicles in the
enforcement of the Prohibition Act is thus clearly established by the
legislative history of the Stanley Amendment.
Is such a distinction consistent with the 4th Amendment? We think that it is. The 4th Amendment does not denounce all
searches or seizures, but only such as are unreasonable.
The leading case on the
subject of search and seizure is Boyd v. United States, 116 U. S. 616, 29 L.
ed. 746, 6 Sup. Ct. Rep. 524. An Act of
Congress of June 22, 1874 [18 Stat. at L. 186, chap. 391, 2 Fed. Stat. Anno. 2d
ed. p. 1176], authorized a court of the United States in revenue cases, on
motion of the government attorney, to require the defendant to produce in court
his private books, invoices, and papers on pain, in case of refusal, of having
the allegations of the attorney in his motion taken as confessed. This was held to be unconstitutional and
void as applied to suits for penalties or to establish a forfeiture of goods,
on the ground that, under the 4th Amendment, the compulsory production of
invoices to furnish evidence for forfeiture of goods constituted an
unreasonable search even where made upon a search warrant, and was also a
violation of the 5th Amendment, in that it compelled the defendant in a
criminal case to produce evidence against himself, or be in the attitude of
confessing his guilt.
In Weeks v. United
States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341,
Ann. Cas. 1915C, 1177, it was held that a court in a criminal prosecution could
not retain letters of the accused, seized in his house, in his absence, and
without his authority, by a United States marshal
[267 US
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holding no warrant for his
arrest and none for the search of his premises, to be used as evidence against
him, the accused having made timely application to the court for an order for
the return of the letters.
In Silverthorne Lumber
Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 24 A.L.R. 1426, 40 Sup. Ct.
Rep. 182, a writ of error was brought to reverse a judgment of contempt of the
district court, fining the company and imprisoning one Silverthorne, its
president, until he should purge himself of contempt in not producing books and
documents of the company before the grand jury to prove violation of the
statutes of the United States by the company and Silverthorne. Silverthorne had been arrested, and, while
under arrest, the marshal had gone to the office of the company without a
warrant, and made a clean sweep of all books, papers, and documents found
there, and had taken copies and photographs of the papers. The district court ordered the return of the
originals, but impounded the photographs and copies. This was held to be an unreasonable search of the property and
possessions of the corporation, and a violation of the 4th Amendment, and the
judgment for contempt was reversed.
In Gouled v. United
States, 255 U. S. 298, 65 L. ed. 647, 41 Sup. Ct. Rep. 261, the obtaining
through stealth, by a representative of the government, from the office of one
suspected of defrauding the government, of a paper which had no pecuniary value
in itself, but was only to be used as evidence against its owner, was held to
be a violation of the 4th Amendment. It
was further held that when the paper was offered in evidence and duly objected
to, it must be ruled inadmissible, because obtained through an unreasonable
search and seizure, and also in violation of the 5th Amendment, because working
compulsory incrimination.
In Amos v. United States,
255 U. S. 313, 65 L. ed. 654, 41 Sup. Ct. Rep. 266, it was held that where
concealed liquor was found by government officers without a search warrant, in
the home of the defendant,
[267 US
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in his absence, and after
a demand made upon his wife, it was inadmissible as evidence against the
defendant, because acquired by an unreasonable seizure.
In none of the cases
cited is there any ruling as to the validity under the 4th Amendment of a
seizure without a warrant of contraband goods in the course of transportation,
and subject to forfeiture or destruction.
On reason and authority
the true rule is that if the search and seizure without a warrant are made upon
probable cause, that is, upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains that
which by law is subject to seizure and destruction, the search and seizure are
valid. The 4th Amendment is to be
construed in the light of what was deemed an unreasonable search and seizure
when it was adopted, and in a manner which will conserve public interests as
well as the interests and rights of individual citizens.<*pg.550>
In Boyd v. United States,
116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, as already said, the
decision did not turn on whether a reasonable search might be made without a
warrant, but, for the purpose of showing the principle on which the 4th
Amendment proceeds, and to avoid any misapprehension of what was decided, the
court, speaking through Mr. Justice Bradley, used language which is of
particular significance and applicability here. It was there said (page 623):
"The search for and
seizure of stolen or forfeited goods, or goods liable to duties and concealed
to avoid the payment thereof, are totally different things from a search for
and seizure of a man's private books and papers for the purpose of obtaining
information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled
to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by
the
[267 US
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common law; and the
seizure of goods forfeited for a breach of the revenue laws, or concealed to
avoid the duties payable on them, has been authorized by English statutes for
at least two centuries past; and the like seizures have been authorized by our
own revenue acts from the commencement of the government. The first statute passed by Congress to
regulate the collection of duties, the Act of July 31, 1789, 1 Stat. at L. 29,
43, chap. 5, contains provisions to this effect. As this act was passed by the same Congress which proposed for
adoption the original amendments to the Constitution, it is clear that the
members of that body did not regard searches and seizures of this kind as
'unreasonable,' and they are not embraced within the prohibition of the
Amendment. So, also, the supervision
authorized to be exercised by officers of the revenue over the manufacture or
custody of excisable articles, and the entries thereof in books required by law
to be kept for their inspection, are necessarily excepted out of the category
of unreasonable searches and seizures.
So, also, the laws which provide for the search and seizure of articles
and things which it is unlawful for a person to have in his possession for the
purpose of issue or disposition, such as counterfeit coin, lottery tickets,
implements of gambling, etc., are not within this category. Com. v. Dana, 2 Met. 329. Many other things
of this character might be enumerated."
It is noteworthy that the
24th section of the Act of 1789, to which the court there refers, provides:
"That every
collector, naval officer and surveyor, or other person specially appointed by
either of them for that purpose, shall have full power and authority, to enter
any ship or vessel, in which they shall have reason to suspect any goods, wares
or merchandise subject to duty shall be concealed; and therein to search for,
seize, and secure any such goods, wares or merchandise; and if they shall have
cause to suspect a concealment thereof, in any
[267 US
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particular dwelling house,
store, building, or other place, they or either of them shall, upon application
on oath or affirmation to any justice of the peace, be entitled to a warrant to
enter such house, store, or other place (in the daytime only) and there to
search for such goods, and if any shall be found, to seize and secure the same
for trial; and all such goods, wares and merchandise, on which the duties shall
not have been paid or secured, shall be forfeited."
Like provisions were
contained in the Act of August 4, 1790, chap. 35, §§ 48‑51, 1 Stat. at L.
145, 170; in § 27 of the Act of February 18, 1793, chap. 8, 1 Stat. at L. 305,
315; and in §§ 68‑71 of the Act of March 2, 1799, chap. 22, 1 Stat. at L.
627, 677, 678, Comp. Stat. §§ 5769, 5785, 2 Fed. Stat. Anno. 2d ed. p. 1168.
Thus, contemporaneously
with the adoption of the 4th Amendment, we find in the first Congress, and in
the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when
concealed in a dwelling house or similar place, and like goods in course of
transportation and concealed in a movable vessel, where they readily could be
put out of reach of a search warrant. Compare Hester v. United States, 265 U.
S. 57, 68 L. ed. 898, 44 Sup. Ct. Rep. 445.
Again, by the 2d section
of the Act of March 3, 1815 (3 Stat. at L. 231, 232, chap. 94), it was made
lawful for customs officers not only to board and search vessels within their
own and adjoining districts, but also to stop, search, and examine any vehicle,
beast, or person on which or whom they should suspect there was merchandise
which was subject to duty, or had been introduced into the United States in any
manner contrary to law, whether by the person in charge of the vehicle or beast
or otherwise, and if they should find any goods,
<*pg.551> wares, or merchandise thereon,
which they had probable cause to believe had been so unlawfully brought into
the country, to seize and secure the same, and the vehicle or beast as well,
for trial
[267 US
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and forfeiture. This act was renewed April 27, 1816 (3 Stat.
at L. 315, chap. 100), for a year and expired.
The Act of February 28, 1865, revived § 2 of the Act of 1815, above
described, chap. 67, 13 Stat. at L. 441.
The substance of this section was re‑enacted in the 3d section of
the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter
embodied in the Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat.
Anno. 2d ed. p. 1161. Neither § 3061
nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section
was referred to and treated as operative by this court in Von Cotzhausen v.
Nazro, 107 U. S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. See also United States v. One Black Horse,
129 Fed. 167.
Again, by § 2140 of the
Revised Statutes (Comp. Stat. § 4476, 3 Fed. Stat. Anno. 2d ed. p. 915) any
Indian agent, subagent, or commander of a military post in the Indian country,
having reason to suspect or being informed that any white person or Indian is
about to introduce, or has introduced, any spirituous liquor or wine into the
Indian country, in violation of law, may cause the boats, stores, packages,
wagons, sleds, and places of deposit of such person to be searched, and if any
liquor is found therein, then it, together with the vehicles, shall be seized
and proceeded against by libel in the proper court and forfeited. Section 2140 was the outgrowth of the Act of
May 6, 1822, chap. 58, 3 Stat. at L. 682, authorizing Indian agents to cause
the goods of traders in the Indian country to be searched upon suspicion or
information that ardent spirits were being introduced into the Indian country,
to be seized and forfeited if found; and of the Act of June 30, 1834, § 20,
chap. 161, 4 Stat. at L. 729, 732, enabling an Indian agent having reason to
suspect any person of having introduced, or being about to introduce, liquors
into the Indian country, to cause the boats, stores, or places of deposit of
such person to be searched and the liquor found forfeited. This court recognized the Statute of 1822 as
justifying such a search and seizure in American Fur Co. v. United States, 2
Pet. 358, 7 L. ed. 450. By the Indian
[267 US
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Appropriation Act of March
2, 1917, chap. 146, 39 Stat. at L. 969, 970, Comp. Stat. § 4141a, Fed. Stat.
Anno. Supp. 1918, p. 260, automobiles used in introducing or attempting to
introduce intoxicants into the Indian territory may be seized, libeled, and
forfeited, as provided in the Revised Statutes, § 2140.
And again, in Alaska, by
§ 174 of the Act of March 3, 1899, chap. 429, 30 Stat. at L. 1253, 1280, it is
provided that collectors and deputy collectors, or any person authorized by
them in writing, shall be given power to arrest persons and seize vessels and
merchandise in Alaska liable to fine, penalties, or forfeiture under the act,
and to keep and deliver the same, and the Attorney General, in construing the
act, advised the government: "If
your agents reasonably suspect that a violation of law has occurred, in my
opinion they have power to search any vessel within the 3‑mile limit,
according to the practice of customs officers when acting under § 3059 of the
Revised Statutes (Comp. Stat. § 5761, 2 Fed. Stat. Anno. 2d ed. p. 1160), and
to seize such vessels." 26 Ops.
Attys. Gen. 243.
We have made a somewhat
extended reference to these statutes to show that the guaranty of freedom from
unreasonable searches and seizures by the 4th Amendment has been construed,
practically since the beginning of the government, as recognizing a necessary
difference between a search of a store, dwelling house, or other structure in
respect of which a proper official warrant readily may be obtained, and a
search of a ship, motor boat, wagon, or automobile for contraband goods, where
it is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought.
Having thus established
that contraband goods concealed and illegally transported in an automobile or
other vehicle may be searched for without a warrant, we come now to consider
under what circumstances such search may be made. It would be intolerable and unreasonable
[267 US
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if a prohibition agent
were authorized to stop every automobile on the chance of finding liquor, and
thus subject all persons lawfully using the highways to the inconvenience and
indignity of such a search. Travelers
may be so stopped in crossing an international boundary, because of national
self‑protection reasonably requiring one
<*pg.552> entering the country to identify
himself as entitled to come in, and his belongings as effects which may be
lawfully brought in. But those lawfully
within the country, entitled to use the public highways, have a right to free
passage without interruption or search unless there is known to a competent
official authorized to search, probable cause for believing that their vehicles
are carrying contraband or illegal merchandise. Section 26, title II., of the National Prohibition Act, like the
2d section of the Act of 1789, for the searching of vessels, like the
provisions of the Act of 1815, and § 3061, Revised Statutes, for searching
vehicles for smuggled goods, and like the Act of 1822 and that of 1834, and §
2140, Rev. Stat. and the Act of 1917, for the search of vehicles and
automobiles for liquor smuggled into the Indian country, was enacted primarily
to accomplish the seizure and destruction of contraband goods; secondly, the
automobile was to be forfeited; and thirdly, the driver was to be arrested. Under § 29, title II., of the act, the
latter might be punished by not more than $500 fine for the first offense, not
more than $1,000 fine and ninety days' imprisonment for the second offense, and
by a fine of $500 or more, and by not more than two years' imprisonment, for
the third offense. Thus, he is to be
arrested for a misdemeanor for his first and second offenses, and for a felony
if he offends the third time. The main
purpose of the act obviously was to deal with the liquor and its
transportation, and to destroy it. The
mere manufacture of liquor can do little to defeat the policy of the 18th
Amendment and the Prohibition Act, unless the forbidden
[267 US
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product can be distributed
for illegal sale and use. Section 26 was intended to reach and destroy the forbidden
liquor in transportation, and the provisions for forfeiture of the vehicle and
the arrest of the transporter were incidental.
The rule for determining what may be required before a seizure may be
made by a competent seizing official is not to be determined by the character
of the penalty to which the transporter may be subjected. Under § 28, title II., of the Prohibition
Act, the Commissioner of Internal Revenue, his assistants, agents, and
inspectors, are to have the power and protection in the enforcement of the act
conferred by the existing laws relating to the manufacture or sale of
intoxicating liquors. Officers who
seize under § 26 of the Prohibition Act are therefore protected by § 970 of the
Revised Statutes (Comp. Stat. § 1611, 2 Fed. Stat. Anno. 2d ed. 638), providing
that:
"When, in any
prosecution commenced on account of the seizure of any vessel, goods, wares, or
merchandise, made by any collector or other officer, under any act of Congress
authorizing such seizure, judgment is rendered for the claimant, but it appears
to the court that there was reasonable cause of seizure, the court shall cause
a proper certificate thereof to be entered, and the claimant shall not, in such
case, be entitled to costs, nor shall the person who made the seizure, nor the
prosecutor, be liable to suit or judgment on account of such suit or
prosecution: Provided, that the vessel, goods, wares, or merchandise be, after
judgment, forthwith returned to such claimant or his agent."
It follows from this that
if an officer seizes an automobile or the liquor in it without a warrant, and
the facts, as subsequently developed, do not justify a judgment of condemnation
and forfeiture, the officer may escape costs or a suit for damages by a showing
that he had reasonable or probable cause for the seizure. Stacey v. Emery, 97 U. S. 642, 24 L. ed.
1035. The measure of legality of such a
seizure is,
[267 US
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therefore, that the
seizing officer shall have reasonable or probable cause for believing that the
automobile which he stops and seizes has contraband liquor therein which is
being illegally transported.
We here find the line of
distinction between legal and illegal seizures of liquor in transport in
vehicles. It is certainly a reasonable
distinction. It gives the owner of an
automobile or other vehicle seized under § 26, in absence of probable cause, a
right to have restored to him the automobile; it protects him under the Weeks
and Amos Cases from use of the liquor as evidence against him; and it subjects
the officer making the seizures to damages.
On the other hand, in a case showing probable cause, the government and
its officials are given the opportunity which they should have, to make the
investigation necessary to trace reasonably suspected contraband goods and to
seize them.
Such a rule fulfils the
guaranty of the 4th Amendment. In cases
where the securing of a warrant is reasonably practicable, it must be used,
and, when <*pg.553> properly supported by affidavit, and issued after judicial approval,
protects the seizing officer against a suit for damages. In cases where seizure is impossible except
without warrant, the seizing officer acts unlawfully and at his peril unless he
can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972.
But we are pressed with
the argument that if the search of the automobile discloses the presence of
liquor, and leads, under the statute, to the arrest of the person in charge of
the automobile, the right of seizure should be limited by the common‑law
rule as to the circumstances justifying an arrest without warrant for a
misdemeanor. The usual rule is a police
officer may arrest without warrant one believed by the officer, upon reasonable
cause, to have been guilty of a felony, and that he may only arrest without a
warrant one guilty of a misdeameanor if committed
[267 US
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in his presence. Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed.
458, 6 Sup. Ct. Rep. 148; Bad Elk v. United States, 177 U. S. 529, 44 L. ed.
874, 20 Sup. Ct. Rep. 729. The rule is
sometimes expressed as follows:
"In cases of
misdemeanor, a peace officer, like a private person, has at common law no power
of arresting without a warrant except when a breach of the peace has been
committed in his presence, or there is reasonable ground for supposing that a
breach of peace is about to be committed or renewed in his presence." 9 Laws of England (Halsbury), part III. 612.
The reason for arrest for
misdemeanors without warrant at common law was promptly to suppress breaches of
the peace (1 Stephen, History of Criminal Law, 193), while the reason for
arrest without warrant on a reliable report of a felony was because the public
safety and the due apprehension of criminals charged with heinous offenses
required that such arrests should be made at once without warrant. Rohan v. Sawin, 5 Cush. 281. The argument for defendants is that, as the
misdemeanor, to justify arrest without warrant, must be committed in the
presence of the police officer, the offense is not committed in his presence
unless he can, by his senses, detect that the liquor is being transported, no
matter how reliable his previous information, by which he can identify the
automobile as loaded with it. Elrod v.
Moss, 278 Fed. 123; Hughes v. State, 145 Tenn. 544, 20 A.L.R. 639, 238 S. W.
588.
So it is that, under the
rule contended for by defendants, the liquor, if carried by one who has been
already twice convicted of the same offense, may be seized on information other
than the senses; while if he has been only once convicted, it may not be seized
unless the presence of the liquor is detected by the senses as the automobile
concealing it rushes by. This is
certainly a very unsatisfactory line of difference when the main object of the
section is to forfeit and suppress the liquor, the arrest of the individual
being only incidental, as shown by the lightness
[267 US
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of the penalty. See Com. v. Street, 3 Pa. Dist. & Co.
Rep. 783. In England, at common law, the difference in punishment between felonies
and misdemeanors was very great. Under
our present Federal statutes, it is much less important, and Congress may
exercise a relatively wide discretion in classing particular offenses as
felonies or misdemeanors. As the main
purpose of § 26 was seizure and forfeiture, it is not so much the owner as the
property that offends. Agnew v. Haymes,
72 C. C. A. 325, 141 Fed. 631, 641. The
language of the section provides for seizure when the officer of the law
"discovers" anyone in the act of transporting the liquor by
automobile or other vehicle. Certainly
it is a very narrow and technical construction of this word which would limit
it to what the officer sees, hears, or smells as the automobile rolls by, ‑‑and
exclude therefrom, when he identifies the car, the convincing information that
he may previously have received as to the use being made of it.
We do not think such a
nice distinction is applicable in the present case. When a man is legally arrested for an offense, whatever is found
upon his person or in his control which it is unlawful for him to have, and
which may be used to prove the offense, may be seized and held as evidence in
the prosecution. Weeks v. United
States, 232 U. S. 383, 392, 58 L. ed. 652, 655, L.R.A.1915B, 834, 34 Sup. Ct.
Rep. 341, Ann. Cas. 1915C, 1177; Dillon v. O'Brien, 16 Cox, C. C. 245, 20 L. R.
Ir. 300, 7 Am. Crim. Rep. 66; Getchell v. Page, 103 Me. 387, 18 L.R.A.(N.S.)
253, 125 Am. St. Rep. 307, 69 Atl. 624; Kneeland v. Connally, 70 Ga. 424; 1
Bishop, Crim. Proc. § 211; 1 Whart. Crim. Proc. 10th ed. § 97. The argument of defendants is based on the
theory that the seizure in this case can
<*pg.554> only be thus justified. If their theory were sound, their conclusion
would be. The validity of the seizure
then would turn wholly on the validity of the arrest without a seizure. But the theory is unsound. The right to search and the validity of the
seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer
[267 US
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has for belief that the
contents of the automobile offend against the law. The seizure in such a
proceeding comes before the arrest, as § 26 indicates. It is true that § 26, title II., provides
for immediate proceedings against the person arrested, and that, upon
conviction, the liquor is to be destroyed and the automobile or other vehicle
is to be sold, with the saving of the interest of a lienor who does not know of
its unlawful use; but it is evident that if the person arrested is ignorant of
the contents of the vehicle, or if he escapes, proceedings can be had against
the liquor for destruction or other disposition under § 25 of the same
title. The character of the offense for
which, after the contraband liquor is found and seized, the driver can be
prosecuted, does not affect the validity of the seizure.
This conclusion is in
keeping with the requirements of the 4th Amendment and the principles of search
and seizure of contraband forfeitable property; and it is a wise one, because
it leaves the rule one which is easily applied and understood, and is
uniform. Houck v. State, 106 Ohio St.
195, 140 N. E. 112, accords with this conclusion. Ash v. United States, 299 Fed. 277, and Milam v. United States,
296 Fed. 629, decisions by the circuit court of appeals for the fourth circuit,
take the same view. The Ash Case is
very similar in its facts to the case at bar, and both were by the same court
which decided Snyder v. United States, 285 Fed. 1, cited for the defendants.
See also Park v. United States (1st C. C. A.) 294 Fed. 776, 783, and Lambert v.
United States (9th C. C. A.) 282 Fed. 413.
Finally, was there
probable cause? In The Apollon, 9
Wheat. 362, 6 L. ed. 111, the question was whether the seizure of a French
vessel at a particular place was upon probable cause that she was there for the
purpose of smuggling. In this
discussion Mr. Justice Story, who delivered the judgment of the court, said
(page 374):
"It has been very
justly observed at the bar, that the court is bound to take notice of public
facts and geographical
[267 US
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positions; and that this
remote part of the country has been infested, at different periods, by
smugglers, is a matter of general notoriety, and may be gathered from the
public documents of the government."
We know in this way that
Grand Rapids is about 152 miles from Detroit, and that Detroit and its
neighborhood along the Detroit river, which is the international boundary, is
one of the most active centers for introducing illegally into this country
spirituous liquors for distribution into the interior. It is obvious from the evidence that the
prohibition agents were engaged in a regular patrol along the important
highways from Detroit to Grand Rapids, to stop and seize liquor carried in
automobiles. They knew, or had
convincing evidence to make them believe, that the Carroll boys, as they called
them, were so‑called "bootleggers" in Grand Rapids, ‑‑i.
e., that they were engaged in plying the unlawful trade of selling such liquor
in that city. The officers had soon
after noted their going from Grand Rapids halfway to Detroit, and attempted to
follow them to that city to see where they went, but they escaped
observation. Two months later these
officers suddenly met the same men on their way westward, presumably from
Detroit. The partners in the original
combination to sell liquor in Grand Rapids were together in the same automobile
they had been in the night when they tried to furnish the whisky to the
officers, which was thus identified as part of the firm equipment. They were coming from the direction of the
great source of supply for their stock to Grand Rapids, where they plied their
trade. That the officers, when they saw
the defendants, believed that they were carrying liquor, we can have no doubt;
and we think it is equally clear that they had reasonable cause for thinking
so. Emphasis is put by defendants'
counsel on the statement made by one of the officers that they were not looking
for defendants at the particular time when they appeared. We do not perceive that it has any
weight. As soon as they did appear,
[267 US
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the officers were entitled
to use their reasoning faculties upon all the facts of which they had previous
knowledge in respect to the defendants.
The necessity for
probable cause in justifying seizures on land or sea, in making arrests without
warrant for past <*pg.555> felonies, and in malicious prosecution and false imprisonment
cases, has led to frequent definition of the phrase. In Stacey v. Emery, 97 U. S. 642, 645, 24 L. ed. 1035, 1036, a
suit for damages for seizure by a collector, this court defined probable cause
as follows:
"If the facts and
circumstances before the officer are such as to warrant a man of prudence and
caution in believing that the offense has been committed, it is
sufficient."
Locke v. United States, 7
Cranch, 339, 3 L. ed. 364; The George, 1 Mason, 24, Fed. Cas. No. 5,328; The
Thompson (The Isabella Thompson v. United States) 3 Wall. 155, 18 L. ed.
55. It was laid down by Chief Justice
Shaw, in Com. v. Carey, 12 Cush. 246, 251, that "if a constable or other
peace officer arrest a person without a warrant, he is not bound to show in his
justification a felony actually committed, to render the arrest lawful; but if
he suspects one on his own knowledge of facts, or on facts communicated to him
by others, and thereupon he has reasonable ground to believe that the accused
has been guilty of felony, the arrest is not unlawful." Com. v. Phelps, 209 Mass. 396, 95 N. E. 868,
Ann. Cas. 1912B, 566; Rohan v. Sawin, 5 Cush. 281, 285. In McCarthy v. De Armit, 99 Pa. 63, the
supreme court of Pennsylvania sums up the definition of probable cause in this
way (page 69):
"The substance of
all the definitions is a reasonable ground for belief in guilt."
In the case of Director
Gen. v. Kastenbaum, 263 U. S. 25, 68 L. ed. 146, 44 Sup. Ct. Rep. 52, which was
a suit for false imprisonment, it was said by this court (page 28):
"But, as we have
seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within
knowledge of the Director General's agent,
[267 US
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which, in the judgment of
the court, would make his faith reasonable."
See also Munns v. De
Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9,926.
In the light of these
authorities, and what is shown by this record, it is clear the officers here
had justification for the search and seizure. This is to say, that the facts
and circumstances within their knowledge, and of which they had reasonably
trustworthy information, were sufficient in themselves to warrant a man of
reasonable caution in the belief that intoxicating liquor was being transported
in the automobile which they stopped and searched.
Counsel finally argue
that the defendants should be permitted to escape the effect of the conviction
because the court refused, on motion, to deliver them the liquor when, as they
say, the evidence adduced on the motion was much less than that shown on the
trial, and did not show probable cause.
The record does not make it clear what evidence was produced in support
of or against the motion. But, apart
from this, we think the point is without substance here. If the evidence given on the trial was
sufficient, as we think it was, to sustain the introduction of the liquor as
evidence, it is immaterial that there was an inadequacy of evidence when
application was made for its return. A
conviction on adequate and admissible evidence should not be set aside on such
a ground. The whole matter was gone
into at the trial, so no right of the defendants was infringed.
Counsel for the
government, contend that Kiro, the defendant who did not own the automobile,
could not complain of the violation of the 4th Amendment in the use of the
liquor as evidence against him, whatever the view taken as to Carroll's
rights. Our conclusion as to the whole
case makes it unnecessary for us to discuss this aspect of it.
The judgment is affirmed.
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