us/267/132.html
CARROLL et al.
v.
U.S.
267 U.S. 132 (1925)
No. 15.
Reargued and Submitted March 14, 1924.
Decided March 2, 1925.
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.
[267
U.S. 132, 136] Messrs. Thomas E. Atkinson and Clare J. Hall, both of Grand
Rapids, Mich., for plaintiffs in error.
[267
U.S. 132, 143] The Attorney General and Mr. James M. Beck, Sol. Gen., of
Washington, D. C., for the United States.
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
Fourth Amendment and the National Prohibition Act.
The
Fourth 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 2, of the National Prohibition Act, c. 85, 41 Stat. 305, 315, passed
to enforce the Eighteenth 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 inquor. 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 som business purpose such
as a store, shop, saloon, restaurant, hotel, or boaring house. The term
'private dwelling' shall be construed to include the room or rooms used and
occupied not transiently but solely as [267 U.S. 132, 144] a residence in an
apartment house, hotel, or boarding house.’
Section
26, title 2, 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
section 6 of an act supplemental to the National Prohibition Act ( 42 Stat.
222, 223, c. 134 [Comp. St. Ann. Supp. 1923, 10184a]) it is provided that if
any officer or agent or employee of the 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:
'Sec. 6. That any officer, agent or employee of the
United States engaged in the enforcement of this act or [267 U.S. 132, 145] 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 U.S. 132, 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 U.S. 132, 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.
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 Fourth Amendment? We think that it is, The
Fourth 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, 6 S. Ct. 524. An Act of Congress of June 22, 1874 (18 Stat. 187),
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 Fourth 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 Fifth 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, 34 S. Ct. 341, L. R. A. 1915B, 834, 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 U.S. 132, 148] 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, 40 S. Ct. 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 Fourth Amendment and the judgment for
contempt was reversed.
In
Gouled v. United States, 255 U.S. 298, 41 S. Ct. 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 Fourth 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 Fifth Amendment because working compulsory incrimination.
In
Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, it was held that where
concealed liquor was found by government officers without a search warrant in
the home of the defendant, [267 U.S. 132, 149] 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 Fourth
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 circumstaces 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 Fourth 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.
In
Boyd v. United States, 116 U.S. 616, 6 S. Ct. 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 Fourth
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 [6
S. Ct. 528]):
'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 U.S.
132, 150] 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 duites, the Act of July 31, 1789, 1 Stat. 29, 43, 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. Common- welath v. Dana, 2 Metc. (Mass. 329. Many
other things of this character might be enumerated.'
It
is noteworthy that the twenty-fourth 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 U.S. 132, 151] 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.' 1 Stat. 43.
Like
provisions were contained in the Act of August 4, 1790, c. 35, 48-51, 1 Stat.
145, 170; in section 27 of the Act of February 18, 1793, c. 8, 1 Stat. 305,
315; and in sections 68-71 of the Act of March 2, 1799, c. 22, 1 Stat. 627,
677, 678.
Thus
contemporaneously with the adoption of the Fourth 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, 44 S. Ct. 445.
Again,
by the second section of the Act of March 3, 1815, 3 Stat. 231, 232, 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, 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 U.S. 132, 152] and forfeiture. This
act was renewed April 27, 1816 (3 Stat. 315), for a year and expired. The Act of
February 28, 1865, revived section 2 of the Act of 1815, above described, 13
Stat. 441, c. 67. The substance of this section was re-enacted in the third
section of the Act of July 18, 1866, c. 201, 14 Stat. 178, and was thereafter
embodied in the Revised Statutes as section 3061 (Comp. St. 5763). Neither
section 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 Cotzhausen v. Nazro, 107 U.S. 215, 219, 2 S. Ct. 503. See,
also, United States v. One Black Horse (D C.) 129 F. 167.
Again
by section 2140 of the Revised Statutes (Comp. St. 4141) 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 and
proceeded against by libel in the proper court and forfeited. Section 2140 was
the outgrowth of the Act of May 6, 1822, c. 58, 3 Stat. 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, c. 161, 4 Stat. 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 boat, 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. By the Indian [267 U.S. 132, 153] Appropriation Act
of March 2, 1917, c. 146, 39 Stat. 969, 970, 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 section 174 of the Act of March 3, 1899, c. 429, 30 Stat.
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
three-mile limit according to the practice of customs officers when acting
under section 3059 of the Revised Statutes [Comp. St. 5761], and to seize such
vessels.' 26 Op. 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 Fourth
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 U.S. 132, 154] 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 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 2, of
the National Prohibition Act, like the second section of the act of 1789, for
the searching of vessels, like the provisions of the act of 1815, and section
3601, Revised Statutes, for searching vehicles for smuggled goods, and like the
act of 1822, and that of 1834 and section 2140, R. S., 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 section 29, title 2, 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 90 days' imprisonment for the second offense, and by a
fine of $500 or more and by not more than 2 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 Eighteenth Amendment and the Prohibition Act,
unless the for [267 U.S. 132, 155] bidden 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 section 28, title 2, 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 section 26 of the Prohibition Act
are therefore protected by section 970 of the Revised Statutes (Comp. St.
1611), 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. The measure of legality of such a
seizure is, [267 U.S. 132, 156] 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 section 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 fulfills the guaranty of the Fourth Amendment. In cases where the
securing of a warrant is reasonably practicable, it must be used and when
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
(D. C.) 286 F. 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 a warrant
for a misdemeanor. The usual rule is that 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
misdemeanor if committed [267 U.S. 132, 157] in his presence. Kurtz v. Moffitt,
115 U.S. 487, 6 S. Ct. 148; John Bad Elk v. United States, 177 U.S. 529, 20 S.
Ct. 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.' Halsbury's Laws of England, vol. 9, 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. [ Mass.] 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 (C. C. A.) 278 F. 123;
Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639.
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 U.S. 132, 158] of the penalty. See
Commonwealth v. Street, 3 Pa. Dist. and Co. Ct. Rep. 783. In England at the
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 section 26 was
seizure and forfeiture, it is not so much the owner as the property that
offends. Agnew v. Haymes, 141 F. 631, 641, 72 C. C. A. 325. The language of the
section provides for seizure when the officer of the law 'discovers' any one 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
excludes 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, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas.
1915C, 1177; Dillon v. O'Brien and Davis, 16 Cox, C. C. 245; Getchell v. Page,
103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307; Kneeland
v. Connally, 70 Ga. 424; 1 Bishop, Criminal Procedure, 211; 1 Wharton, Criminal
Procedure (10th Ed.) 97. The argument of defendants is based on the theory that
the seizure in this case can 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 U.S. 132, 159] has for belief that the contents of the automobile
offend against the law. The seizure in such a proceeding comes before the
arrest as section 26 indicates. It is true that section 26, title 2, 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 section 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 Fourth 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 (C. C. A.) 299 F. 277, and Milam v.
United States (C. C. A.) 296 F. 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 ( C. C. A.) 285 F. 1, cited for the defendants. See, also,
Park v. United States (1st C. C. A.) 294 F. 776, 783, and Lambert v. United
States (9th C. C. A.) 282 F. 413.
Finally,
was there probable cause? In The Apollon, 9 Wheat. 362, 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 U.S. 132,
160] positions, and that this remote part of the country has been infested, at
different periods, by smugglers, is 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 half way 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 U.S. 132, 161] 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 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), 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.'
See
Locke v. United States, 7 Cranch, 339; The George, 1 Mason, 24, Fed. Cas. No.
5328; The Thompson, 3 Wall. 155.
It
was laid down by Chief Justice Shaw, in Commonwealth 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.' Commonwealth 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 of guilt.'
In
the case of the Director General v. Kastenbaum, 263 U.S. 25, 44 S. Ct. 52, which
was a suit for false imprisonment, it was said by this court (page 28 [44 S.
Ct. 53]):
'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 U.S. 132, 162] which in the
judgment of the court would make his faith reasonable.'
See,
also, Munn v. De Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9926.
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 Fourth 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. [267 U.S. 132, 163] Mr. Justice McKENNA, before his
retirement, concurred in this opinion.
The
separate opinion of Mr. Justice McREYNOLDS.
1.
The damnable character of the 'bootlegger's' business should not close our eyes
to the mischief which will surely follow any attempt to destroy it by
unwarranted methods. 'To press forward to a great principle by breaking through
every other great principle that stands in the way of its establishment; ... in
short, to procure an eminent good by means that are unlawful, is as little
consonant to private morality as to public justice.' Sir William Scott, The Le
Louis, 2 Dodson, 210, 257.
While
quietly driving an ordinary automobile along a much frequented public road,
plaintiffs in error were arrested by federal officers without a warrant and
upon mere suspicion-ill-founded, as I think. The officers then searched the
machine and discovered carefully secreted whisky, which was seized and
thereafter used as evidence against plaintiffs in error when on trial for
transporting intoxicating liquor contrary to the Volstead Act. 41 Stat. 305, c.
85. They maintain that both arrest and seizure were unlawful and that use of
the liquor as evidence violated their constitutional rights.
This
is not a proceeding to forfeit seized goods; nor is it an action against the
seizing officer for a tort. Cases like the following are not controlling:
Crowell v. McFadon. 8 Cranch, 94, 98; United States v. 1960 Bags of Coffee, 8
Cranch, 398, 403, 405; Otis v. Watkins, 9 Cranch, 339; Gelston v. Hoyt, 3
Wheat. 246, 310, 318; Wood v. United States, 16 Pet. 342; Taylor v. United
States, 3 How. 197, 205. They turned upon express provisions of applicable acts
of Congress; they did not involve the point now presented and afford little, if
any, assistance toward its proper solution. The Volstead Act does not, in
terms, authorize arrest or seizure upon mere suspicion. [267 U.S. 132, 164]
Whether the officers are shielded from prosecution or action by Rev. Stat. 970,
is not important. That section does not undertake to deprive the citizen of any
constitutional right or to permit the use of evidence unlawfully obtained. It
does, however, indicate the clear understanding of Congress that probable cause
is not always enough to justify a seizure.
Nor
are we now concerned with the question whether by apt words Congress might have
authorized the arrest without a warrant. It has not attempted to do this. On
the contrary, the whole history of the legislation indicates a fixed purpose
not so to do. First and second violations are declared to be
misdemeanors-nothing more-and Congress, of course, understood the rule
concerning arrests for such offenses. Whether different penalties should have
been prescribed or other provisions added is not for us to inquire; nor do
difficulties attending enforcement give us power to supplement the legislation.
2.
As the Volstead Act contains no definite grant of authority to arrest upon
suspicion and without warrant for a first offense, we come to inquire whether
such authority can be inferred from its provisions.
Unless
the statute which creates a misdemeanor contains some clear provision to the
contrary, suspicion that it is being violated will not justify an arrest.
Criminal statutes must be strictly construed and applied, in harmony with rules
of the common law. United States v. Harris, 177 U.S. 305, 310, 20 S. Ct. 609.
And the well-settled doctrine is that an arrest for a misdemeanor may not be
made without a warrant unless the offense is committed in the officer's
presence.
Kurtz
v. Moffitt, 115 U.S. 487, 498, 6 S. Ct. 148, 152 (29 L. Ed. 458):
'By the common law of England, neither a civil officer
nor a private citizen had the right without a warrant to make an arrest for a
crime not committed in his presence, except in the case [267 U.S. 132, 165] of
felony, and then only for the purpose of bringing the offender before a civil
magistrate.'
John
Bad Elk v. United States, 177 U.S. 529, 534, 20 S. Ct. 729, 731 ( 44 L. Ed.
874):
'An officer, at common law, was not authorized to make
an arrest without a warrant, for a mere misdemeanor not committed in his
presence.'
Commonwealth
v. Wright, 158 Mass. 149, 158, 33 N. E. 82, 85 (19 L. R. A. 206, 35 Am. St.
Rep. 475):
'It is suggested that the statutory misdemeanor of
having in one's possession short lobsters with intent to sell them is a
continuing offence, which is being committed while such possession continues,
and that therefore an officer who sees any person in possession of such
lobsters with intent to sell them can arrest such person without a warrant, as
for a misdemeanor committed in his presence. We are of opinion, however, that
for statutory misdemeanors of this kind, not amounting to a breach of the
peace, there is no authority in an officer to arrest without a warrant, unless
it is given by statute . ... The Legislature has often empowered officers to
arrest without a warrant for similar offenses, which perhaps tends to show
that, in its opinion, no such right exists at common law.'
Pinkerton
v. Verberg, 78 Mich. 573, 584, 44 N. W. 579, 582 (7 L. R. A. 507, 18 Am. St.
Rep. 473):
'Any law which would place the keeping and
safe-conduct of another in the hands of even a conservator of the peace, unless
for some breach of the peace committed in his presence, or upon suspicion of
felony, would be most oppressive and unjust, and destroy all the rights which
our Constitution guarantees. These are rights which existed long before our
Constitution, and we have taken just pride in their maintenance, making them a
part of the fundamental law of the land.' 'If persons can be restrained of their
liberty, and assaulted and imprisoned, under such circumstances, without
complaint or warrant, then there is no limit to the power of a police officer.'
3.
The Volstead Act contains no provision which annuls the accepted common-law
rule or discloses definite intent [267 U.S. 132, 166] to authorize arrests
without warrant for misdemeanors not committed in the officer's presence.
To
support the contrary view section 26 is relied upon.
'When ... 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.'
Let
it be observed that this section has no special application to automobiles; it
includes any vehicle-buggy, wagon, boat, or air craft. Certainly, in a criminal
statute, always to be strictly construed, the words 'shall discover ... in the
act of transporting in violation of the law' cannot mean shall have reasonable
cause to suspect or believe that such transportation is being carried on. To
discover and to suspect are wholly different things. Since the beginning apt
words have been used when Congress intended that arrests for misdemeanors or
seizures might be made upon suspicion. It has studiously refrained from making
a felony of the offense here charged; and it did not undertake by any apt words
to enlarge the power to arrest. It was not ignorant of the established rule on
the subject, and well understood how this could be abrogated, as plainly
appears from statutes like the following:
'An act to regulate the collection of duties on
imports and tonnage,' approved March 2, 1789, 1 Stat. 627, 677, 678, c. 22; 'An
act to provide more effectually for the collection of the duties imposed by law
on goods, wares and merchandise imported [267 U.S. 132, 167] into the United
States, and on the tonnage of ships or vessels,' approved August 4, 1790, 1
Stat. 145, 170, c. 35; 'An act further to provide for the collection of duties
on imports and tonnage,' approved March 3, 1815, 3 Stat. 231, 232, c. 94.
These
and similar acts definitely empowered officers to seize upon suspicion and
therein radically differ from the Volstead Act, which authorized no such thing.
'An act supplemental to the National Prohibition Act,'
approved November 23, 1921, 42 Stat. 222, 223, c. 134, provides:
'That any officer, agent, or employee of the United
States engaged in the enforcement of this act, or the National Prohibition Act,
or any other law of the United States, who shall search any private dwelling as
defined in the National Prohibition Act, and occupied as such dwelling, without
a warrant directing such search, or who while so engaged shall without a search
warrant maliciously and without reasonable cause search any other building or
property, shall be guilty of a misdemeanor and upon conviction thereof shall be
fined for a first offense not more than $1,000, and for a subsequent offense not
more than $1,000 or imprisoned not more than one year, or both such fine and
imprisonment.'
And
it is argued that the words and history of this section indicate the intent of
Congress to distinguish between the necessity for warrants in order to search
private dwelling and the right to search automobiles without one. Evidently
Congress regarded the searching of private dwellings as matter of much graver
consequence than some other searches and distinguished between them by
declaring the former criminal. But the connection between this distinction and
the legality of plaintiffs in error's arrest is not apparent. Nor can I find
reason for inquiring concerning the validity of the distinction under the
Fourth Amendment. Of course, the distinction is [267 U.S. 132, 168] valid, and
so are some seizures. But what of it? The act made nothing legal which
theretofore was unlawful, and to conclude that by declaring the unauthorized
search of a private dwelling criminal Congress intended to remove ancient
restrictions from other searches and from arrests as well, would seem
impossible.
While
the Fourth Amendment denounces only unreasonable seizures unreasonableness
often depends upon the means adopted. Here the seizure followed an unlawful
arrest, and therefore became itself unlawful-as plainly unlawful as the seizure
within the home so vigorously denounced in Weeks v. United States, 232 U.S.
383, 391, 392 S., 393, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C,
1177.
In
Snyder v. United States, 285 F. 1, 2, the Court of Appeals, Fourth Circuit,
rejected evidence obtained by an unwarranted arrest, and clearly announced some
very wholesome doctrine:
'That an officer may not make an arrest for a
misdemeanor not committed in his presence, without a warrant, has been so
frequently decided as not to require citation of authority. It is equally
fundamental that a citizen may not be arrested on suspicion of having committed
a misdemeanor and have his person searched by force, without a warrant of
arrest. If, therefore, the arresting officer in this case had no other
justification for the arrest than the mere suspicion that a bottle, only the
neck of which he could see protruding from the pocket of defendant's coat,
contained intoxicating liquor, then it would seem to follow without much
question that the arrest and search, without first having secured a warrant,
were illegal. And that his only justification was his suspicion is admitted by
the evidence of the arresting officer himself. If the bottle had been empty or
if it had contained any one of a dozen innoxious liquids, the act of the
officer would, admittedly, have been an unlawful invasion of the personal
liberty of the defendant. That it happened in this instance to contain whisky,
we think, [267 U.S. 132, 169] neither justifies the assault nor condemns the
principle which makes such an act unlawful.'
The
validity of the seizure under consideration depends on the legality of the
arrest. This did not follow the seizure, but the reverse is true. Plaintiffs in
error were first brought within the officers' power, and, while therein, the
seizure took place. If an officer, upon mere suspicion of a misdemeanor, may
stop one on the public highway, take articles away from him and thereafter use
them as evidence to convict him of crime, what becomes of the Fourth and Fifth
Amendments?
In
Weeks v. United States, supra, through Mr. Justice Day, this court said:
'The effect of the Fourth Amendment is to put the
courts of the United States and federal officials, in the exercise of their
power and authority, under limitations and restraints as to the exercise of
such power and authority, and to forever secure the people, their persons, houses,
papers and effects against all unreasonable searches and seizures under the
guise of law. This protection reaches all alike, whether accused of crime or
not, and the duty of giving to it force and effect is obligatory upon all
entrusted under our federal system with the enforcement of the laws. The
tendency of those who execute the criminal laws of the country to obtain
conviction by means of unlawful seizures and enforced confessions, the latter
often obtained after subjecting accused persons to unwarranted practices
destructive of rights secured by the federal Constitution, should find no
sanction in the judgments of the courts which are charged at all times with the
support of the Constitution and to which people of all conditions have a right
to appeal for the maintenance of such fundamental rights. ... The efforts of
the courts and their officials to bring the guilty to punishment, praiseworthy
as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have [267 U.S. 132, 170]
resulted in their embodiment in the fundamental law of the land.'
Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 391, 40 S. Ct. 182:
'The proposition could not be presented more nakedly.
It is that although of course its seizure was an outrage which the government
now regrets, it may study the papers before it returns them, copy them, and
then may use the knowledge that it has gained to call upon the owners in a more
regular form to produce them; that the protection of the Constitution covers
the physical possession but not any advantages that the government can gain
over the object of its pursuit by doing the forbidden act. Weeks v. United
States, 232 U.S. 383, to be sure, had established that laying the papers
directly before the grand jury was unwarranted, but it is taken to mean only
that two steps are required instead of one. In our opinion such is not the law.
It reduces the Fourth Amendment to a form of words. 232 U.S. 393. The essence
of a provision forbidling the acquisition of evidence in a certain way is that
not merely evidence so acquired shall not be used before the court but that it
shall not be used at all. Of course this does not mean that the facts thus
obtained become sacred and inaccessible. If knowledge of them is gained from an
independent source they may be proved like any others, but the knowledge gained
by the government's own wrong cannot be used by it in the way proposed.'
Gouled
v. United States, 255 U.S. 298, 41 S. Ct. 261, and Amos v. United States, 255
U.S. 313, 41 S. Ct. 266, distinctly point out that property procured by
unlawful action of federal officers cannot be introduced as evidence.
The
arrest of plaintiffs in error was unauthorized, illegal, and violated the guaranty
of due process given by the Fifth Amendment. The liquor offered in evidence was
obtained by the search which followed this arrest and was therefore obtained in
violation of their constitutional [267 U.S. 132, 171] rights. Articles found
upon or in the control of one lawfully arrested may be used as evidence for
certain purposes, but not at all when secured by the unlawful action of a
federal officer.
4.
The facts known by the officers who arrested plaintiffs in error were wholly
insufficient to create a reasonable belief that they were transporting liquor
contrary to law. These facts were detailed by Fred Cronenwett, chief
prohibition officer. His entire testimony as given at the trial follows:
'I am in charge of the federal prohibition department
in this district. I am acquainted with these two respondents, and first saw
them on September 29, 1921, in Mr. Scully's apartment on Oakes street, Grand
Rapids. There were three of them that came to Mr. Scully's apartment, one by
the name of Kruska, George Krio, and John Carroll. I was introduced to them
under the name of Stafford, and told them I was working for the Michigan Chair
Company, and wanted to buy three cases of whisky, and the price was agreed
upon. After they thought I was all right, they said they would be back in half
or three-quarters of an hour; that they had to go out to the east end of Grand
Rapids to get this liquor. They went away and came back in a short time, and
Mr. Kruska came upstairs and said they couldn't get it that night; that a
fellow by the name of Irving, where they were going to get it, wasn't in, but
they were going to deliver it the next day, about ten. They didn't deliver it
the next day. I am not positive about the price. It seems to me it was around
$130 a case. It might be $135. Both respondents took part in this conversation.
When they came to Mr. Scully's apartment they had this same car. While it was
dark and I wasn't able to get a good look at this car, later, on the 6th day of
October, when I was out on the road with Mr. Scully, I was waiting on the
highway while he went to Reed's Lake to get a light [267 U.S. 132, 172] lunch,
and they drove by, and I had their license number and the appearance of their
car, and knowing the two boys, seeing them on the 29th day of September, I was
satisfied when I seen the car on December 15th it was the same car I had seen
on the 6th day of October. On the 6th day of October it was probably twenty
minutes before Scully got back to where I was. I told him the Carroll boys had
just gone toward Detroit and we were trying to catch up with them and see where
they were going. We did catch up with them somewhere along by Ada, just before
we got to Ada, and followed them to East Lansing. We gave up the chase at East
Lansing.
'On the 15th of December, when Peterson and Scully and
I overhauled this car on the road, it was in the country, on Pike 16, the road
leading between Grand Rapids and Detroit. When we passed the car we were going
toward Ionia, or Detroit, and the Kiro and Carroll boys were coming towards
Grand Rapids when Mr. Scully and I recognized them and said, 'There goes the
Carroll brothers,' and we went on still further in the same direction we were
going and turned around and went back to them-drove up to the side of them. Mr.
Scully was driving the car; I was sitting in the front seat, and I stepped out
on the running board and held out my hand and said, 'Carroll, stop that car,'
and they did stop it. John Kiro was driving the car. After we got them stopped,
we asked them to get out of the car, which they did. Carroll referred to me,
and called me by the name of 'Fred,' just as soon as I got up to him. Raised up
the back part of the roadster; didn't find any liquor there; then raised up the
cushion; then I struck at the lazyback of the seat and it was hard. I then
started to open it up, and I did tear the cushion some, and Carroll said,
'Don't tear the cushion; we have only got six cases in there;' and I took out
two bottles and found out it was liquor; satisfied it was liquor. Mr. Peterson
and a fellow by the [267 U.S. 132, 173] name of Gerald Donker came in with the
two Carroll boys and the liquor and the car to Grand Rapids. They brought the
two defendants and the car and the liquor to Grand Rapids. I and the other men
besides Peterson stayed out on the road, looking for other cars that we had
information were coming in. There was conversation between me and Carroll
before Peterson started for town with the defendants. Mr. Carroll said, 'Take
the liquor, and give us one more chance, and I will make it right with you.' At
the same time he reached in one of his trousers pockets and pulled out money;
the amount of it I don't know. I wouldn't say it was a whole lot. I saw a $10
bill and there was some other bills; I don't know how much there was; it wasn't
a large amount.
'As I understand, Mr. Hanley helped carry the liquor
from the car. On the next day afterwards, we put this liquor in boxes, steel
boxes, and left it in the marshal's vault, and it is still there now. Mr.
Hanley and Chief Deputy Johnson, some of the agents and myself were there. Mr.
Peterson was there the next day that the labels were signed by the different
officers; those two bottles, Exhibits A and B.
'Q. Now, those two bottles, Exhibits A and B, were
those the two bottles you took out of the car out there, or were those two
bottles taken out of the liquor after it got up here? A. We didn't label them
out on the road; simply found it was liquor and sent it in; and this liquor was
in Mr. Hanley's custody that evening and during the middle of the next day when
we checked it over to see the amount of liquor that was there. Mr. Johnson and
I sealed the bottles, and Mr. Johnson's name is on the label that goes over the
bottle with mine, and this liquor was taken out of the case to-day. It was
taken out for the purpose of analyzation. The others were not broken until to-
day. [267 U.S. 132, 174] 'Q. And are you able to tell us, from the label and
from the bottles, whether it is part of the same liquor taken out of that car?
A. It has the appearance of it; yes, sir. Those are the bottles that were in
there that Mr. Hanley said was gotten out of the Carroll car.'
Cross-examination:
'I think I was the first one to get back to the
Carroll car after it was stopped. I had a gun in my pocket; I didn't present
it. I was the first one to the car and raised up the back of the car, but the
others were there shortly afterward. We assembled right around the car
immediately.
'Q. And whatever examination and what investigation
you made you went right ahead and did it in your own way? A. Yes, sir.
'Q. And took possession of it, arrested them, and
brought them in? A. Yes, sir.
'Q. And at that time, of course, you had no search warrant?
A. No, sir. We had no knowledge that this car was coming through at that
particular time.'
Redirect
examination:
'The lazyback was awfully hard when I struck it with
my fist. It was harder than upholstery ordinarily is in those backs; a great deal
harder. It was practically solid. Sixty-nine quarts of whisky in one lazyback.'
The
negotiation concerning three cases of whisky on September 29th was the only
circumstance which could have subjected plaintiffs in error to any reasonable
suspicion. No whisky was delivered, and it is not certain that they ever
intended to deliver any. The arrest came 2 1/2 months after the negotiation.
Every act in the meantime is consistent with complete innocence. Has it come
about that merely because a man once agreed to deliver whisky, but did not, he
may be arrested whenever thereafter he ventures to drive an automobile on the
road to Detroit!
5.
When Congress has intended that seizures or arrests might be made upon
suspicion it has been careful to say [267 U.S. 132, 175] so. The history and
terms of the Volstead Act are not consistent with the suggestion that it was
the purpose of Congress to grant the power here claimed for enforcement
officers. The facts known when the arrest occurred were wholly insufficient to
engender reasonable belief that plaintiffs in error were committing a
misdemeanor, and the legality of the arrest cannot be supported by facts
ascertained through the search which followed.
To
me it seems clear enough that the judgment should be reversed.
I
am authorized to say that Mr. Justice SUTHERLAND concurs in this opinion.