CHIMEL v. CALIFORNIA
No. 770
SUPREME COURT OF THE UNITED STATES
395 U.S. 752; 89 S. Ct. 2034; 1969 U.S. LEXIS 1166; 23 L.
Ed. 2d 685
March 27, 1969, Argued
June 23, 1969, Decided
PRIOR HISTORY: [***1]
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
DISPOSITION: 68 Cal. 2d 436, 439 P. 2d 333, reversed.
SYLLABUS: Police officers, armed with an arrest warrant but not a
search warrant, were admitted to petitioner's home by his wife,
where they awaited petitioner's arrival. When he entered he was
served with the warrant. Although he denied the officers' request
to "look around," they conducted a search of the entire house "on
the basis of the lawful arrest." At petitioner's trial on burglary
charges, items taken from his home were admitted over objection
that they had been unconstitutionally seized. His conviction was
affirmed by the California appellate courts, which held, despite
their acceptance of petitioner's contention that the arrest warrant
was invalid, that since the arresting officers had procured the
warrant "in good faith," and since in any event they had had
sufficient information to constitute probable cause for the arrest,
the arrest was lawful. The courts also held that the search was
justified as incident to a valid arrest. Held: Assuming the arrest
was valid, the warrantless search of petitioner's house cannot be
constitutionally justified as incident [***2] to that arrest.
Pp. 755-768.
(a) An arresting officer may search the arrestee's person to
discover and remove weapons and to seize evidence to prevent its
concealment or destruction, and may search the area "within the
immediate control" of the person arrested, meaning the area from
which he might gain possession of a weapon or destructible
evidence. Pp. 762-763.
(b) For the routine search of rooms other than that in which an
arrest occurs, or for searching desk drawers or other closed or
concealed areas in that room itself, absent well-recognized
exceptions, a search warrant is required. P. 763.
(c) While the reasonableness of a search incident to arrest
depends upon "the facts and circumstances -- the total atmosphere
of the case," those facts and circumstances must be viewed in the
light of established Fourth Amendment principles, and the only
reasoned distinction is one between (1) a search of the person
arrested and the area within his reach, and (2) more extensive
searches. Pp. 765-766.
(d) United States v. Rabinowitz, 339 U.S. 56, and Harris v.
United States, 331 U.S. 145, on their facts, and insofar as the
principles they [***3]
PAGE 60 395 U.S.
752, *; 89 S. Ct. 2034, **; LEXSEE
1969 U.S. LEXIS 1166, ***3; 23 L. Ed. 2d 685
stand for are inconsistent with this decision, are no longer to be
followed. P. 768.
(e) The scope of the search here was unreasonable under the
Fourth and Fourteenth Amendments, as it went beyond petitioner's
person and the area from within which he might have obtained a
weapon or something that could have been used as evidence against
him, and there was no constitutional justification, in the absence
of a search warrant, for extending the search beyond that area. P.
768.
COUNSEL: Keith C. Monroe, by appointment of the Court, 394 U.S.
940, argued the cause and filed briefs for petitioner.
Ronald M. George, Deputy Attorney General of California, argued
the cause for respondent. With him on the brief were Thomas C.
Lynch, Attorney General, and William E. James, Assistant Attorney
General.
JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White,
Marshall
OPINIONBY: STEWART
OPINION: [*753] [**2035] MR. JUSTICE STEWART delivered the
opinion of the Court.
This case raises basic questions concerning the permissible
scope under the Fourth Amendment of a search incident to a lawful
arrest.
The relevant facts are essentially undisputed. Late in the
afternoon of September 13, 1965, [***4] three police officers
arrived at the Santa Ana, California, home of the petitioner with
a warrant authorizing his arrest for the burglary of a coin shop.
The officers knocked on the door, identified themselves to the
petitioner's wife, and asked if they might come inside. She
ushered them into the house, where they waited 10 or 15 minutes
until the petitioner returned home from work. When the petitioner
entered the house, one of the officers handed him the arrest
warrant and asked for permission to "look around." The petitioner
objected, but was advised that [*754] "on the basis of the
lawful arrest," the officers would nonetheless conduct a search.
No search warrant had been issued.
Accompanied by the petitioner's wife, the officers then looked
through the entire three-bedroom house, including the attic, the
garage, and a small workshop. In some rooms the search was
relatively cursory. In the master bedroom and sewing room,
however, the officers directed the petitioner's wife to open
drawers and "to physically move contents of the drawers from side
to side so that [they] might view any items that would have come
from [the] burglary." After completing the search, they seized
[***5] numerous items -- primarily coins, but also several
medals, tokens, and a few other objects. The entire search took
between 45 minutes and an hour.
At the petitioner's subsequent state trial on two charges of
burglary, the items taken from his house were admitted into
evidence against him, over his objection that they had been
unconstitutionally seized. He was convicted, and the judgments of
conviction were affirmed by both the California Court of Appeal, 61
Cal. Rptr. 714, and the California Supreme Court, 68 Cal. 2d 436,
PAGE 61 395 U.S. 752, *754; 89 S. Ct. 2034,
**2035; LEXSEE 1969 U.S. LEXIS 1166,
***5; 23 L. Ed. 2d 685
439 P. 2d 333. Both courts accepted the petitioner's contention
that the arrest warrant was invalid because the supporting
affidavit was set out in conclusory terms, n1 but held that since
the arresting officers had procured the warrant "in good faith,"
and since in any event they had had sufficient information to
constitute probable cause for the petitioner's arrest, that arrest
had been lawful. From this conclusion the appellate courts went on
to hold that the search of the petitioner's home [*755] had
been justified, despite the absence of a search warrant, on the
ground that it had been incident [***6] to a valid arrest. We
granted certiorari in order to consider the petitioner's
substantial constitutional claims. 393 U.S. 958.
- - - - - - - - - -Footnotes- - - - - - - - - - - - -
n1 The affidavit supporting the warrant is set out in the
opinion of the Court of Appeal, 61 Cal. Rptr., at 715-716, n. 1,
and the State does not challenge its insufficiency under the
principles of Aguilar v. Texas, 378 U.S. 108, and Spinelli v.
United States, 393 U.S. 410.
- - - - - - - - -End Footnotes- - - - - - - - - - - -
Without deciding the question, we proceed on the hypothesis that
the California [**2036] courts were correct in holding that the
arrest of the petitioner was valid under the Constitution. This
brings us directly to the question whether the warrantless search
of the petitioner's entire house can be constitutionally justified
as incident to that arrest. The decisions of this Court bearing
upon that question have been far from consistent, as even the most
cursory review makes evident.
Approval of a warrantless search incident to a lawful [***7]
arrest seems first to have been articulated by the Court in 1914
as dictum in Weeks v. United States, 232 U.S. 383, in which the
Court stated:
"What then is the present case? Before answering that inquiry
specifically, it may be well by a process of exclusion to state
what it is not. It is not an assertion of the right on the part of
the Government, always recognized under English and American law,
to search the person of the accused when legally arrested to
discover and seize the fruits or evidences of crime." Id., at 392.
That statement made no reference to any right to search the place
where an arrest occurs, but was limited to a right to search the
"person." Eleven years later the case of Carroll v. United States,
267 U.S. 132, brought the following embellishment of the Weeks
statement:
"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 [*756] as evidence in the prosecution." Id., at 158.
(Emphasis added.)
Still, that [***8] assertion too was far from a claim that the
"place" where one is arrested may be searched so long as the arrest
is valid. Without explanation, however, the principle emerged in
expanded form a few months later in Agnello v. United States, 269
U.S. 20 -- although still by way of dictum:
PAGE 62
395 U.S. 752, *756; 89 S. Ct. 2034, **2036;
LEXSEE 1969 U.S. LEXIS 1166, ***8; 23 L. Ed. 2d
685
"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an
escape from custody, is not to be doubted. See Carroll v. United
States, 267 U.S. 132, 158; Weeks v. United States, 232 U.S. 383,
392." 269 U.S., at 30.
And in Marron v. United States, 275 U.S. 192, two years later, the
dictum of Agnello appeared to be the foundation of the Court's
decision. In that case federal agents had secured a search warrant
authorizing the seizure of liquor and certain articles used in its
manufacture. When they arrived at [***9] the premises to be
searched, they saw "that the place was used for retailing and
drinking intoxicating liquors." Id., at 194. They proceeded to
arrest the person in charge and to execute the warrant. In
searching a closet for the items listed in the warrant they came
across an incriminating ledger, concededly not covered by the
warrant, which they also seized. The Court upheld the seizure of
the ledger by holding that since the agents had made a lawful
arrest, "they had a right without a warrant contemporaneously to
search the place in order to find and seize the things used to
carry on the criminal enterprise." Id., at 199.
[*757] That the Marron opinion did not mean all that it seemed
to say became evident, however, a few years later in Go-Bart
Importing Co. v. United States, 282 U.S. 344, and United States v.
Lefkowitz, 285 U.S. 452. In each of [**2037] those cases the
opinion of the Court was written by Mr. Justice Butler, the author
of the opinion in Marron. In Go-Bart, agents had searched the
office of persons whom they had lawfully arrested, n2 and had taken
several [***10] papers from a desk, a safe, and other parts of
the office. The Court noted that no crime had been committed in
the agents' presence, and that although the agent in charge "had an
abundance of information and time to swear out a valid [search]
warrant, he failed to do so." 282 U.S., at 358. In holding the
search and seizure unlawful, the Court stated:
"Plainly the case before us is essentially different from Marron
v. United States, 275 U.S. 192. There, officers executing a valid
search warrant for intoxicating liquors found and arrested one
Birdsall who in pursuance of a conspiracy was actually engaged in
running a saloon. As an incident to the arrest they seized a
ledger in a closet where the liquor or some of it was kept and some
bills beside the cash register. These things were visible and
accessible and in the offender's immediate custody. There was no
threat of force or general search or rummaging of the place." 282
U.S., at 358.
This limited characterization of Marron was reiterated in
Lefkowitz, a case in which the Court held unlawful a search of desk
drawers and a cabinet despite the fact that the search [***11]
had accompanied a lawful arrest. 285 U.S., at 465.
- - - - - - - - - - -Footnotes- - - - - - - - - - - - -
n2 The Court assumed that the arrests were lawful. 282 U.S., at
356.
- - - - - - - - - -End Footnotes- - - - - - - - - - - -
PAGE 63 395 U.S. 752, *757; 89
S. Ct. 2034, **2037; LEXSEE 1969 U.S.
LEXIS 1166, ***11; 23 L. Ed. 2d 685
The limiting views expressed in Go-Bart and Lefkowitz were
thrown to the winds, however, in Harris v. United [*758]
States, 331 U.S. 145, decided in 1947. In that case, officers had
obtained a warrant for Harris' arrest on the basis of his alleged
involvement with the cashing and interstate transportation of a
forged check. He was arrested in the living room of his four-room
apartment, and in an attempt to recover two canceled checks thought
to have been used in effecting the forgery, the officers undertook
a thorough search of the entire apartment. Inside a desk drawer
they found a sealed envelope marked "George Harris, personal
papers." The envelope, which was then torn open, was found to
contain altered Selective Service documents, and those documents
were used to secure Harris' conviction for violating the Selective
[***12] Training and Service Act of 1940. The Court rejected
Harris' Fourth Amendment claim, sustaining the search as "incident
to arrest." Id., at 151.
Only a year after Harris, however, the pendulum swung again. In
Trupiano v. United States, 334 U.S. 699, agents raided the site of
an illicit distillery, saw one of several conspirators operating
the still, and arrested him, contemporaneously "seiz[ing] the
illicit distillery." Id., at 702. The Court held that the arrest
and others made subsequently had been valid, but that the
unexplained failure of the agents to procure a search warrant -- in
spite of the fact that they had had more than enough time before
the raid to do so --rendered the search unlawful. The opinion
stated:
"It is a cardinal rule that, in seizing goods and articles, law
enforcement agents must secure and use search warrants wherever
reasonably practicable. . . . This rule rests upon the
desirability of having magistrates rather than police officers
determine when searches and seizures are permissible and what
limitations should be placed upon such activities. . . . To
provide the necessary [***13] security against unreasonable
intrusions upon the private lives of [*759] individuals, the
framers of [**2038] the Fourth Amendment required adherence to
judicial processes wherever possible. And subsequent history has
confirmed the wisdom of that requirement.
. . . .
"A search or seizure without a warrant as an incident to a
lawful arrest has always been considered to be a strictly limited
right. It grows out of the inherent necessities of the situation
at the time of the arrest. But there must be something more in the
way of necessity than merely a lawful arrest." Id., at 705, 708.
In 1950, two years after Trupiano, n3 came United States v.
Rabinowitz, 339 U.S. 56, the decision upon which California
primarily relies in the case now before us. In Rabinowitz, federal
authorities had been informed that the defendant was dealing in
stamps bearing forged overprints. On the basis of that information
they secured a warrant for his arrest, which they executed at his
one-room business office. At the time of the arrest, the officers
"searched the desk, safe, and file cabinets in the office for about
an hour and a half," id., at 59, [***14] and seized 573 stamps
with forged overprints. The stamps were admitted into evidence at
the defendant's trial, and this Court affirmed his conviction,
rejecting the contention that the warrantless search had been
unlawful. The Court held that the search in its entirety fell
within the
PAGE 64 395 U.S. 752, *759; 89 S.
Ct. 2034, **2038; LEXSEE 1969 U.S.
LEXIS 1166, ***14; 23 L. Ed. 2d 685
principle giving law enforcement authorities "the right 'to search
the place where the arrest is made in order to find and seize
things connected with the crime . . . .'" Id., at 61. Harris was
regarded as "ample authority" for that conclusion. Id., at 63. The
opinion rejected the rule of Trupiano that "in seizing goods and
articles, law enforcement agents must secure and use search
warrants [*760] wherever reasonably practicable." The test,
said the Court, "is not whether it is reasonable to procure a
search warrant, but whether the search was reasonable." Id., at 66.
- - - - - - - - - - -Footnotes- - - - - - - - - -
n3 See also McDonald v. United States, 335 U.S. 451.
- - - - - - - - - -End Footnotes- - - - - - - - -
Rabinowitz [***15] has come to stand for the proposition,
inter alia, that a warrantless search "incident to a lawful arrest"
may generally extend to the area that is considered to be in the
"possession" or under the "control" of the person arrested. n4 And
it was on the basis of that proposition that the California courts
upheld the search of the petitioner's entire house in this case.
That doctrine, however, at least in the broad sense in which it was
applied by the California courts in this case, can withstand
neither historical nor rational analysis.
- - - - - - - - - -Footnotes- - - - - - - - - - -
n4 Decisions of this Court since Rabinowitz have applied the
abstract doctrine of that case to various factual situations with
divergent results. Compare Ker v. California, 374 U.S. 23, 42; Abel
v. United States, 362 U.S. 217; and Draper v. United States, 358
U.S. 307, with Kremen v. United States, 353 U.S. 346 (per curiam).
Cf. Chapman v. United States, 365 U.S. 610; Jones v. United States,
357 U.S. 493, 499-500.
- - - - - - - -End Footnotes- - - - - - - - -[***16]
Even limited to its own facts, the Rabinowitz decision was, as
we have seen, hardly founded on an unimpeachable line of authority.
As Mr. Justice Frankfurter commented in dissent in that case, the
"hint" contained in Weeks was, without persuasive justification,
"loosely turned into dictum and finally elevated to a decision."
339 U.S., at 75. And the approach taken in cases such as Go-Bart,
Lefkowitz, and Trupiano was essentially disregarded by the
Rabinowitz Court.
[**2039] Nor is the rationale by which the State seeks here to
sustain the search of the petitioner's house supported by a
reasoned view of the background and purpose of the Fourth
Amendment. Mr. Justice Frankfurter wisely pointed out in his
Rabinowitz dissent that the Amendment's proscription of
"unreasonable searches and seizures" [*761] must be read in
light of "the history that gave rise to the words" -- a history of
"abuses so deeply felt by the Colonies as to be one of the potent
causes of the Revolution . . . ." 339 U.S., at 69. The Amendment
was in large part a reaction to the general warrants and
warrantless searches that had so alienated the colonists [***17]
and had helped speed the movement for independence. n5 In the
scheme of the
PAGE 65 395 U.S. 752, *761;
89 S. Ct. 2034, **2039; LEXSEE 1969
U.S. LEXIS 1166, ***17; 23 L. Ed. 2d 685
Amendment, therefore, the requirement that "no Warrants shall
issue, but upon probable cause," plays a crucial part. As the
Court put it in McDonald v. United States, 335 U.S. 451:
"We are not dealing with formalities. The presence of a search
warrant serves a high function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate between the citizen
and the police. This was done not to shield criminals nor to make
the home a safe haven for illegal activities. It was done so that
an objective mind might weigh the need to invade that privacy in
order to enforce the law. The right of privacy was deemed too
precious to entrust to the discretion of those whose job is the
detection of crime and the arrest of criminals. . . . And so the
Constitution requires a magistrate to pass on the desires of the
police before they violate the privacy of the home. We cannot be
true to that constitutional requirement and excuse the absence of
a search warrant without a showing by those who seek exemption from
the constitutional mandate that the exigencies of the [***18]
situation made that course imperative." Id., at 455-456.
[*762] Even in the Agnello case the Court relied upon the rule
that "belief, however well founded, that an article sought is
concealed in a dwelling house furnishes no justification for a
search of that place without a warrant. And such searches are held
unlawful notwithstanding facts unquestionably showing probable
cause." 269 U.S., at 33. Clearly, the general requirement that a
search warrant be obtained is not lightly to be dispensed with, and
"the burden is on those seeking [an] exemption [from the
requirement] to show the need for it . . . ." United States v.
Jeffers, 342 U.S. 48, 51.
- - - - - - - -Footnotes- - - - - - - - - -
n5 See generally Boyd v. United States, 116 U.S. 616, 624-625;
Weeks v. United States, 232 U.S. 383, 389-391; Davis v. United
States, 328 U.S. 582, 603-605 (dissenting opinion); Harris v.
United States, 331 U.S. 145, 157-162 (dissenting opinion); Stanford
v. Texas, 379 U.S. 476, 481-482.
- - - - - - -End Footnotes- - - - - - - - -[***19]
Only last Term in Terry v. Ohio, 392 U.S. 1, we emphasized that
"the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure,"
id., at 20, n6 and that "the scope of [a] search must be 'strictly
tied to and justified by' the circumstances which rendered its
initiation permissible. [**2040] " Id., at 19. The search
undertaken by the officer in that "stop and frisk" case was
sustained under that test, because it was no more than a
"protective . . . search for weapons." Id., at 29. But in a
companion case, Sibron v. New York, 392 U.S. 40, we applied the
same standard to another set of facts and reached a contrary
result, holding that a policeman's action in thrusting his hand
into a suspect's pocket had been neither motivated by nor limited
to the objective of protection. n7 Rather, the search had been
made in order to find narcotics, which were in fact found.
- - - - - - -Footnotes- - - - - - - - - -
n6 See also Davis v. Mississippi, 394 U.S. 721, 728; Katz v.
United States, 389 U.S. 347, 356-358; Warden v. Hayden, 387 U.S.
294, 299; Preston v. United
PAGE 66 395 U.S.
752, *762; 89 S. Ct. 2034, **2040; LEXSEE
1969 U.S. LEXIS 1166, ***19; 23 L. Ed. 2d 685
States, 376 U.S. 364, 367. [***20]
n7 Our Sibron opinion dealt with two cases. We refer here to
No. 63, involving the appellant Sibron. See infra, at 764.
- - - - - -End Footnotes- - - - - - - - -
A similar analysis underlies the "search incident to arrest"
principle, and marks its proper extent. When an [*763] arrest
is made, it is reasonable for the arresting officer to search the
person arrested in order to remove any weapons that the latter
might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer's safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable
for the arresting officer to search for and seize any evidence on
the arrestee's person in order to prevent its concealment or
destruction. And the area into which an arrestee might reach in
order to grab a weapon or evidentiary items must, of course, be
governed by a like rule. A gun on a table or in a drawer in front
of one who is arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person arrested. There is
ample justification, therefore, for a search of the arrestee's
person [***21] and the area "within his immediate control" --
construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs -- or,
for that matter, for searching through all the desk drawers or
other closed or concealed areas in that room itself. Such
searches, in the absence of well-recognized exceptions, may be made
only under the authority of a search warrant. n8 The "adherence to
judicial processes" mandated by the Fourth Amendment requires no
less.
- - - - - - - - - -Footnotes- - - - - - - - - -
n8 See Katz v. United States, 389 U.S. 347, 357-358.
- - - - - - - - -End Footnotes- - - - - - - - -
This is the principle that underlay our decision in Preston v.
United States, 376 U.S. 364. In that case three men had been
arrested in a parked car, which had later been towed to a garage
and searched by police. We held the search to have been unlawful
under the Fourth Amendment, despite the contention [***22] that it
had [*764] been incidental to a valid arrest. Our reasoning
was straightforward:
"The rule allowing contemporaneous searches is justified, for
example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by
the need to prevent the destruction of evidence of the crime --
things which might easily happen where the weapon or evidence is on
the accused's person or under his immediate control. But these
justifications are absent where a search is remote in time or place
from the arrest." Id., at 367. n9
[**2041] The same basic principle was reflected in our opinion
last Term in
PAGE 67 395 U.S. 752, *764; 89
S. Ct. 2034, **2041; LEXSEE 1969 U.S.
LEXIS 1166, ***22; 23 L. Ed. 2d 685
Sibron. That opinion dealt with Peters v. New York, No. 74, as
well as with Sibron's case, and Peters involved a search that we
upheld as incident to a proper arrest. We sustained the search,
however, only because its scope had been "reasonably limited" by
the "need to seize weapons" and "to prevent the destruction of
evidence," to which Preston had referred. We emphasized that the
arresting officer "did not engage in an unrestrained and
thoroughgoing examination of Peters [***23] and his personal
effects. He seized him to cut short his flight, and he searched
him primarily for weapons." 392 U.S., at 67.
- - - - - - - -Footnotes- - - - - - - - - -
n9 Our holding today is of course entirely consistent with the
recognized principle that, assuming the existence of probable
cause, automobiles and other vehicles may be searched without
warrants "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." Carroll v.
United States, 267 U.S. 132, 153; see Brinegar v. United States,
338 U.S. 160.
- - - - - -End Footnotes- - - - - - - - - -
It is argued in the present case that it is "reasonable" to
search a man's house when he is arrested in it. But that argument
is founded on little more than a subjective view regarding the
acceptability of certain sorts of police [*765] conduct, and not
on considerations relevant to Fourth Amendment interests. Under
such an unconfined analysis, Fourth Amendment protection in this
[***24] area would approach the evaporation point. It is not
easy to explain why, for instance, it is less subjectively
"reasonable" to search a man's house when he is arrested on his
front lawn -- or just down the street --than it is when he happens
to be in the house at the time of arrest. n10 As Mr. Justice
Frankfurter put it:
"To say that the search must be reasonable is to require some
criterion of reason. It is no guide at all either for a jury or
for district judges or the police to say that an 'unreasonable
search' is forbidden -- that the search must be reasonable. What
is the test of reason which makes a search reasonable? The test is
the reason underlying and expressed by the Fourth Amendment: the
history and the experience which it embodies and the safeguards
afforded by it against the evils to which it was a response."
United States v. Rabinowitz, 339 U.S., at 83 (dissenting opinion).
Thus, although "the recurring questions of the reasonableness of
searches" depend upon "the facts and circumstances -- the total
atmosphere of the case," id., at 63, 66 (opinion of the Court),
those facts and circumstances must be viewed in [***25] the
light of established Fourth Amendment principles.
- - - - - - -Footnotes- - - - - - - - - - -
n10 Some courts have carried the Rabinowitz approach to just
such lengths. See, e. g., Clifton v. United States, 224 F.2d 329
(C. A. 4th Cir.), cert. denied, 350 U.S. 894 (purchaser of illicit
whiskey arrested in back yard of seller; search of one room of
house sustained); United States v. Jackson, 149 F.Supp. 937 (D. C.
D. C.), rev'd on other grounds, 102 U. S. App. D. C. 109,
PAGE 68 395 U.S. 752, *765; 89 S. Ct. 2034, **2041;
LEXSEE 1969 U.S. LEXIS 1166, ***25; 23 L. Ed. 2d 685
250 F.2d 772 (suspect arrested half a block from his rented room;
search of room upheld). But see James v. Louisiana, 382 U.S. 36
(per curiam).
- - - - - - - -End Footnotes- - - - - - - - -
[*766] It would be possible, of course, to draw a line between
Rabinowitz and Harris on the one hand, and this case on the other.
For Rabinowitz involved a single room, and Harris a four-room
apartment, while in the case before us an entire house was
searched. But such a distinction would be highly artificial.
[***26] The rationale that allowed the searches and seizures in
Rabinowitz and Harris would allow the searches and seizures in this
case. No consideration relevant to the Fourth Amendment suggests
any point of rational limitation, once the search is allowed to go
beyond the area from which the person arrested might obtain weapons
or evidentiary items. n11 [**2042] The only reasoned
distinction is one between a search of the person arrested and the
area within his reach on the one hand, and more extensive searches
on the other. n12
- - - - - - - -Footnotes- - - - - - - - - -
n11 Cf. Mr. Justice Jackson's dissenting comment in Harris:
"The difficulty with this problem for me is that once the search
is allowed to go beyond the person arrested and the objects upon
him or in his immediate physical control, I see no practical limit
short of that set in the opinion of the Court -- and that means to
me no limit at all." 331 U.S., at 197.
n12 It is argued in dissent that so long as there is probable
cause to search the place where an arrest occurs, a search of that
place should be permitted even though no search warrant has been
obtained. This position seems to be based principally on two
premises: first, that once an arrest has been made, the additional
invasion of privacy stemming from the accompanying search is
"relatively minor"; and second, that the victim of the search may
"shortly thereafter" obtain a judicial determination of whether the
search was justified by probable cause. With respect to the second
premise, one may initially question whether all of the States in
fact provide the speedy suppression procedures the dissent assumes.
More fundamentally, however, we cannot accept the view that Fourth
Amendment interests are vindicated so long as "the rights of the
criminal" are "protect[ed] . . . against introduction of evidence
seized without probable cause." The Amendment is designed to
prevent, not simply to redress, unlawful police action. In any
event, we cannot join in characterizing the invasion of privacy
that results from a top-to-bottom search of a man's house as
"minor." And we can see no reason why, simply because some
interference with an individual's privacy and freedom of movement
has lawfully taken place, further intrusions should automatically
be allowed despite the absence of a warrant that the Fourth
Amendment would otherwise require.
- - - - - - -End Footnotes- - - - - - - - - -[***27]
[*767] The petitioner correctly points out that one result of
decisions such as Rabinowitz and Harris is to give law enforcement
officials the opportunity to engage in searches not justified by
probable cause, by the simple expedient of arranging to arrest
suspects at home rather than elsewhere. We do not suggest that the
petitioner is necessarily correct in his assertion that
PAGE 69 395 U.S. 752, *767; 89 S. Ct. 2034,
**2042; LEXSEE 1969 U.S. LEXIS 1166,
***27; 23 L. Ed. 2d 685
such a strategy was utilized here, n13 but the fact remains that
had he been arrested earlier in the day, at his place of employment
rather than at home, no search of his house could have been made
without a search warrant. In any event, even apart from the
possibility of such police tactics, the general point so forcefully
made by Judge Learned Hand in United States v. Kirschenblatt, 16
F.2d 202, remains:
"After arresting a man in his house, to rummage at will among
his papers in search of whatever will convict him, appears to us to
be indistinguishable from what might be done under a general
warrant; indeed, the warrant would give more protection, for
presumably it must be issued by a magistrate. True, by hypothesis
the power would not exist, if the supposed offender [***28] were
not found on the premises; [*768] but it is small consolation
to know that one's papers are safe only so long as one is not at
home." Id., at 203.
- - - - - - - -Footnotes- - - - - - - - - - - - -
n13 Although the warrant was issued at 10:39 a.m. and the arrest
was not made until late in the afternoon, the State suggests that
the delay is accounted for by normal police procedures and by the
heavy workload of the officer in charge. In addition, that officer
testified that he and his colleagues went to the petitioner's house
"to keep from approaching him at his place of business to cause him
any problem there."
- - - - - -End Footnotes- - - - - - - - - - - -
Rabinowitz and Harris have been the subject of critical
commentary for many years, n14 and have been relied upon less and
less in our own decisions. n15 It is [**2043] time, for the
reasons we have stated, to hold that on their own facts, and
insofar as the principles they stand for are inconsistent with
those that we have endorsed today, they are no longer to be
followed.
- - - - - - - -Footnotes- - - - - - - - - - - -
n14 See, e. g., J. Landynski, Search and Seizure and the Supreme
Court 87-117 (1966); Way, Increasing Scope of Search Incidental to
Arrest, 1959 Wash. U. L. Q. 261; Note, Scope Limitations for
Searches Incident to Arrest, 78 Yale L. J. 433 (1969); Note, The
Supreme Court 1966 Term, 81 Harv. L. Rev. 69, 117-122 (1967).
[***29]
n15 Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220;
Katz v. United States, 389 U.S., at 357-358, n. 20; Warden v.
Hayden, 387 U.S., at 299; Stoner v. California, 376 U.S. 483, 487.
But see Cooper v. California, 386 U.S. 58, 62; Ker v. California,
374 U.S., at 42 (opinion of Clark, J.); cf. Beck v. Ohio, 379 U.S.
89, 91; Abel v. United States, 362 U.S., at 236-239; Giordenello v.
United States, 357 U.S. 480, 488.
- - - - - - -End Footnotes- - - - - - - - -
Application of sound Fourth Amendment principles to the facts of
this case produces a clear result. The search here went far beyond
the petitioner's person and the area from within which he might
have obtained either a weapon or something that could have been
used as evidence against him. There was no constitutional
justification, in the absence of a search warrant, for
PAGE 70
395 U.S. 752, *768; 89 S. Ct. 2034, **2043;
LEXSEE 1969 U.S. LEXIS 1166, ***29; 23 L. Ed. 2d 685
extending the search beyond that area. The scope of the search
was, therefore, "unreasonable" [***30] under the Fourth and
Fourteenth Amendments, and the petitioner's conviction cannot
stand. n16
- - - - - - - -Footnotes- - - - - - - - - -
n16 The State has made various subsidiary contentions, including
arguments that it would have been unduly burdensome to obtain a
warrant specifying the coins to be seized and that introduction of
the fruits of the search was harmless error. We reject those
contentions as being without merit.
- - - - - - -End Footnotes- - - - - - - - - -
Reversed.
CONCURBY: HARLAN
CONCUR: [*769] MR. JUSTICE HARLAN, concurring.
I join the Court's opinion with these remarks concerning a
factor to which the Court has not alluded.
The only thing that has given me pause in voting to overrule
Harris and Rabinowitz is that as a result of Mapp v. Ohio, 367 U.S.
643 (1961), and Ker v. California, 374 U.S. 23 (1963), every change
in Fourth Amendment law must now be obeyed by state officials
facing widely different problems of local law enforcement. We
simply do not know the extent to which cities and towns across the
Nation are prepared to administer [***31] the greatly expanded
warrant system which will be required by today's decision; nor can
we say with assurance that in each and every local situation, the
warrant requirement plays an essential role in the protection of
those fundamental liberties protected against state infringement by
the Fourteenth Amendment.
Thus, one is now faced with the dilemma, envisioned in my
separate opinion in Ker, 374 U.S., at 45-46, of choosing between
vindicating sound Fourth Amendment principles at the possible
expense of state concerns, long recognized to be consonant with the
Fourteenth Amendment before Mapp and Ker came on the books, or
diluting the Federal Bill of Rights in the interest of leaving the
States at least some elbow room in their methods of criminal law
enforcement. No comparable dilemma exists, of course, with respect
to the impact of today's decision within the federal system itself.
This federal-state factor has not been an easy one for me to
resolve, but in the last analysis I cannot in good conscience vote
to perpetuate bad Fourth Amendment law.
I add only that this case, together with Benton v. Maryland,
post, p. 784; North Carolina [***32] v. Pearce, ante, p. 711,
and Simpson v. Rice, ante, p. 711, all decided [*770] today,
serve to [**2044] point up, as few other cases have, the
profound changes that the "incorporation doctrine" has wrought both
in the workings of our federal system and upon the adjudicative
processes of this Court.
PAGE 71 395 U.S.
752, *770; 89 S. Ct. 2034, **2044; LEXSEE
1969 U.S. LEXIS 1166, ***32; 23 L. Ed. 2d 685
DISSENTBY: WHITE
DISSENT: MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
dissenting.
Few areas of the law have been as subject to shifting
constitutional standards over the last 50 years as that of the
search "incident to an arrest." There has been a remarkable
instability in this whole area, which has seen at least four major
shifts in emphasis. Today's opinion makes an untimely fifth. In my
view, the Court should not now abandon the old rule.
I.
The modern odyssey of doctrine in this field is detailed in the
majority opinion. It began with Weeks v. United States, 232 U.S.
383 (1914), where the Court paused to note what the case before it
was not. "It is not an assertion of the right on the part of the
Government, always recognized under English and American law, to
search the person of the accused when legally arrested to discover
and seize the fruits [***33] or evidences of crime. This right
has been uniformly maintained in many cases. . . . Nor is it the
case of burglar's tools or other proofs of guilt found upon his
arrest within the control of the accused." Id., at 392. (Emphasis
added.) This scope of search incident to arrest, extending to all
items under the suspect's "control," was reaffirmed in a dictum in
Carroll v. United States, 267 U.S. 132, 158 (1925). Accord, Agnello
v. United States, 269 U.S. 20, 30 (1925) (holding that "the place
where the arrest is made" may be searched "is not to be doubted").
The rule was reaffirmed in Marron v. United States, 275 U.S. 192,
199 (1927), where the Court asserted that authority [*771] to
search incident to an arrest "extended to all parts of the premises
used for the unlawful purpose."
Within five years, this rule was qualified by two Prohibition
Act cases, Go-Bart Importing Co. v. United States, 282 U.S. 344,
356-358 (1931), and United States v. Lefkowitz, 285 U.S. 452,
463-467 (1932).
If Go-Bart and Lefkowitz represented a retreat [***34] from
the rule of Weeks, Carroll, Agnello, and Marron, the vigor of the
earlier rule was reaffirmed in Harris v. United States, 331 U.S.
145 (1947), which has, but for one brief interlude, clearly been
the law until today. The very next Term after Harris, in Trupiano
v. United States, 334 U.S. 699 (1948), the Court held unjustifiable
the seizure of a still incident to the arrest of a man at the still
site, even though the still was contraband, had been visible
through an open door before entering the premises to be "searched,"
and although a crime was being committed in the officers' presence.
Accord, that year, McDonald v. United States, 335 U.S. 451 (1948)
(gambling game seen through transom before entry). Less than two
years later, however, the Court returned to the Harris rule in
United States v. Rabinowitz, 339 U.S. 56 (1950), where the Court
held that the reasonableness of a search does not depend upon the
practicability of obtaining a search warrant, and that the fact of
a valid arrest is relevant to reasonableness. Trupiano was pro
tanto overruled. [***35]
Such rapid reversals have occurred before, n1 but they are rare.
Here there had [**2045] been two about-faces, one following
hard upon the other. Justice Frankfurter objected in this language:
"Especially ought the Court not reenforce needlessly the
instabilities of our day by giving fair ground for the belief that
Law is the expression of [*772] chance -- for instance, of
PAGE 72 395 U.S. 752, *772; 89 S. Ct. 2034,
**2045; LEXSEE 1969 U.S. LEXIS 1166,
***35; 23 L. Ed. 2d 685
unexpected changes in the Court's composition and the contingencies
in the choice of successors." 339 U.S., at 86. Since that time, the
rule of Weeks, Marron, Harris, and Rabinowitz has clearly been the
law. E. g., Abel v. United States, 362 U.S. 217 (1960)
(Frankfurter, J., writing for the Court); Ker v. California, 374
U.S. 23 (1963). n2
- - - - - - -Footnotes- - - - - - - - - - -
n1 Murdock v. Pennsylvania, 319 U.S. 105 (1943), overruled Jones
v. Opelika, 316 U.S. 584 (1942); Legal Tender Cases, 12 Wall. 457
(1871), overruled Hepburn v. Griswold, 8 Wall. 603 (1870).
n2 The majority cities Kremen v. United States, 353 U.S. 346
(1957), as suggesting an inconsistency. There, however, in a per
curiam opinion the Court merely overturned a general search in
which the entire contents of a cabin, which it took 11 pages of
fine print for the Court to inventory, were seized. See Abel v.
United States, 362 U.S. 217, 239 (1960) (Kremen distinguished as a
"mass seizure").
- - - -End Footnotes- - - - - - - - - -[***36]
II.
The rule which has prevailed, but for very brief or doubtful
periods of aberration, is that a search incident to an arrest may
extend to those areas under the control of the defendant and where
items subject to constitutional seizure may be found. The
justification for this rule must, under the language of the Fourth
Amendment, lie in the reasonableness of the rule. Terry v. Ohio,
392 U.S. 1, 9 (1968); Sibron v. New York, 392 U.S. 40 (1968);
Elkins v. United States, 364 U.S. 206, 222 (1960). The Amendment
provides:
"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."
In terms, then, the Court must decide whether a given search is
reasonable. The Amendment does not proscribe "warrantless searches"
but instead it proscribes "unreasonable [*773] searches" and
this Court has never held nor does the majority today [***37]
assert that warrantless searches are necessarily unreasonable.
Applying this reasonableness test to the area of searches
incident to arrests, one thing is clear at the outset. Search of
an arrested man and of the items within his immediate reach must in
almost every case be reasonable. There is always a danger that the
suspect will try to escape, seizing concealed weapons with which to
overpower and injure the arresting officers, and there is a danger
that he may destroy evidence vital to the prosecution.
Circumstances in which these justifications would not apply are
sufficiently rare that inquiry is not made into searches of this
scope, which have been considered reasonable throughout.
PAGE 73 395 U.S. 752, *773; 89 S. Ct. 2034, **2045;
LEXSEE 1969 U.S. LEXIS 1166, ***37; 23
L. Ed. 2d 685
The justifications which make such a search reasonable obviously
do not apply to the search of areas to which the accused does not
have ready physical access. This is not enough, however, to prove
such searches unconstitutional. The Court has always held, and
does not today deny, that when there is probable cause to search
and it is "impracticable" for one reason or another to get a search
warrant, then a warrantless search may be reasonable. E. g., even
Trupiano v. United States, 334 U.S. 699 (1948). [***38] This is
the case whether an arrest was made at the time of the search or
not. n3
- - - - - - - -Footnotes- - - - - - - - - -
n3 Even Mr. Justice Frankfurter, joined in dissent in Rabinowitz
by Mr. Justice Jackson, admitted that there was an exception to the
search-warrant requirement in cases of necessity, and noted that
this applied, for example, to vehicles which could readily be
moved. 339 U.S. 56, at 73.
- - - - - - - - -End Footnotes- - - - - - -
[**2046] This is not to say that a search can be reasonable
without regard to the probable cause to believe that seizable items
are on the premises. But when there are exigent circumstances, and
probable cause, then the search may be made without a warrant,
reasonably. An [*774] arrest itself may often create an
emergency situation making it impracticable to obtain a warrant
before embarking on a related search. Again assuming that there is
probable cause to search premises at the spot where a suspect is
arrested, it seems to me unreasonable to require the police to
leave the scene in order to obtain a search warrant when they
[***39] are already legally there to make a valid arrest, and
when there must almost always be a strong possibility that
confederates of the arrested man will in the meanwhile remove the
items for which the police have probable cause to search. This
must so often be the case that it seems to me as unreasonable to
require a warrant for a search of the premises as to require a
warrant for search of the person and his very immediate
surroundings.
This case provides a good illustration of my point that it is
unreasonable to require police to leave the scene of an arrest in
order to obtain a search warrant when they already have probable
cause to search and there is a clear danger that the items for
which they may reasonably search will be removed before they return
with a warrant. Petitioner was arrested in his home after an
arrest whose validity will be explored below, but which I will now
assume was valid. There was doubtless probable cause not only to
arrest petitioner, but also to search his house. He had obliquely
admitted, both to a neighbor and to the owner of the burglarized
store, that he had committed the burglary. n4 In light of this, and
the fact that the neighbor [***40] had seen other [*775]
admittedly stolen property in petitioner's house, there was surely
probable cause on which a warrant could have issued to search the
house for the stolen coins. Moreover, had the police simply
arrested petitioner, taken him off to the station house, and later
returned with a warrant, n5 it seems very likely that petitioner's
wife, who in view of petitioner's [**2047] generally garrulous
nature must have known of the robbery, would have removed the
coins. For the police to search the house while the evidence they
had probable cause to search out and seize was still there cannot
be considered unreasonable. n6
PAGE 74 395 U.S. 752, *775; 89 S. Ct.
2034, **2047; LEXSEE 1969 U.S. LEXIS
1166, ***40; 23 L. Ed. 2d 685
- - - - - - -Footnotes- - - - - - - - -
n4 Before the burglary of the coin store, petitioner had told
its owner that he was planning a big robbery, had inquired about
the alarm system in the store, the state of the owner's insurance,
and the location of the owner's most valuable coins. Petitioner
wandered about the store the day before the burglary. After the
burglary, petitioner called the store's owner and accused him of
robbing the store himself for the insurance proceeds on a policy
which, as petitioner knew, had just been reduced from $ 50,000 to
$ 10,000 coverage. On being told that the robbery had been sloppy,
petitioner excitedly claimed that it had been "real professional"
but then denied the robbery. On the night of the robbery itself
petitioner declined an invitation to a bicycle ride, saying he was
"going to knock over a place" and that a coin shop was "all set."
After the robbery, he told the same neighbor that he had started to
break into the coin shop, but had stopped, and then denied the
whole incident. The neighbor had earlier seen stacks of
typewriters in petitioner's house. Asked whether they were "hot"
petitioner replied, "Hotter than a $ 3 bill." On reading a
newspaper description of the coin store burglary, the neighbor
called the police. [***41]
n5 There were three officers at the scene of the arrest, one
from the city where the coin burglary had occurred, and two from
the city where the arrest was made. Assuming that one policeman
from each city would be needed to bring the petitioner in and
obtain a search warrant, one policeman could have been left to
guard the house. However, if he not only could have remained in
the house against petitioner's wife's will, but followed her about
to assure that no evidence was being tampered with, the invasion of
her privacy would be almost as great as that accompanying an actual
search. Moreover, had the wife summoned an accomplice, one officer
could not have watched them both.
n6 A second arrest and search of petitioner's house occurred
three days later. It relates to an entirely separate robbery of
which petitioner was separately convicted and for which he was
concurrently sentenced. Since no evidence was seized in the second
search, and since it did not in any way affect petitioner's trial
so far as the record discloses, there is no occasion to consider
its propriety.
- - - - - - - -End Footnotes- - - - - - - - - - -
[*776] III. [***42]
This line of analysis, supported by the precedents of this
Court, hinges on two assumptions. One is that the arrest of
petitioner without a valid warrant n7 was constitutional as the
majority assumes; the other is that the police were not required to
obtain a search warrant in advance, even though they knew that the
effect of the arrest might well be to alert petitioner's wife that
the coins had better be removed soon. Thus it is necessary to
examine the constitutionality of the arrest since if it was
illegal, the exigent circumstances which it created may not, as
the consequences of a lawless act, be used to justify the
contemporaneous warrantless search. But for the arrest, the
warrantless search may not be justified. n8 And if circumstances
can justify the warrantless arrest, it would be strange to say that
the Fourth Amendment bars the warrantless search, regardless of the
circumstances, since the invasion and disruption of a man's life
and privacy which stem from his arrest are
PAGE 75
395 U.S. 752, *776; 89 S. Ct. 2034, **2047;
LEXSEE 1969 U.S. LEXIS 1166, ***42; 23 L. Ed. 2d
685
ordinarily far greater than the relatively minor intrusions
attending a search of his premises.
- - - - - - -Footnotes- - - - - - - - - -
n7 An arrest warrant was in fact issued, but it was issued on an
inadequate supporting affidavit and was therefore invalid, so that
the case must be considered as though no warrant had been issued.
[***43]
n8 This in turn assumes that where it is practicable to obtain
a search warrant and the search is not contemporaneous with an
arrest, a warrant must be obtained to validate the search. This is
the holding of past cases and I do not question it.
- - - -End Footnotes- - - - - - - - - -
Congress has expressly authorized a wide range of officials to
make arrests without any warrant in criminal cases. United States
Marshals have long had this power, n9 which is also vested in the
agents of the Federal [*777] Bureau of Investigation, n10 and in
the Secret Service n11 and the narcotics law enforcement agency.
n12 That warrantless arrest power may apply even when there is time
to get a warrant without fear that the suspect may escape is made
perfectly clear by the legislative history of the statute granting
arrest power to the FBI.
- - - - - - - - -Footnotes- - - - - - - - - - -
n9 Act of June 15, 1935, c. 259, @ 2, 49 Stat. 378, as amended,
18 U. S. C. @ 3053.
n10 Act of June 18, 1934, c. 595, 48 Stat. 1008, as amended, 18
U. S. C. @ 3052.
n11 Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U. S. C.
@ 3056 (1964 ed., Supp. IV). [***44]
n12 Act of July 18, 1956, as amended, Tit. I, @ 104 (a), 70
Stat. 570, 26 U. S. C. @ 7607 (2).
- - - - - - -End Footnotes- - - - - - - - - -
In United States v. Coplon, 185 F.2d 629, 633-636 (C. A. 2d Cir.
1950), the court held that an arrest and search were invalid
because there was an insufficient showing of danger of escape, and
therefore there was time to obtain a warrant. The opinion, written
by Judge Learned Hand and joined by Judges Swan and Frank, reviewed
the common-law power of arrest, which permitted arrests for
felonies committed in the past "if [the officer] had reasonable
ground to suppose that the person arrested had committed the
felony." However, the court concluded that this power of
warrantless arrest had been limited by the congressional
requirement that there must be a "likelihood of the person escaping
[**2048] before a warrant can be obtained for his arrest."
The next month the Congress was moved by this very decision to
amend the law, consciously deleting the language upon which Judge
Hand had relied so as to
PAGE 76 395 U.S.
752, *777; 89 S. Ct. 2034, **2048; LEXSEE
1969 U.S. LEXIS 1166, ***44; 23 L. Ed. 2d 685
make it clear that warrantless arrests were authorized even if
there was time to [***45] procure a warrant. Act of January 10,
1951, c. 1221, @ 1, 64 Stat. 1239; H. R. Rep. No. 3228, 81st Cong.,
2d Sess. (1950). n13 Thereupon, the Court of [*778] Appeals for
the District of Columbia Circuit, passing on the very same arrest
which had induced the congressional action, held that this
"unmistakable" revision made it clear that there was in the FBI a
power to arrest without warrant even when there was time to procure
one. For this reason, the court upheld the arrest and
contemporaneous search. Coplon v. United States, 89 U. S. App. D.
C. 103, 191 F.2d 749 (1951). Certiorari was denied in both Coplon
cases. 342 U.S. 920, 926 (1952). Moreover, the statute under
which the FBI exercises that power was later said by this Court to
state the constitutional standard, Henry v. United States, 361 U.S.
98, 100 (1959), since it requires "reasonable grounds to believe
that the person to be arrested has committed or is committing" a
felony, 18 U. S. C. @ 3052, before a warrantless arrest may be
made. And the Court today has declined to review a warrantless
arrest under the narcotics agent [***46] statute. Jamison v.
United States, post, p. 986. See also my dissent in Shipley v.
California, post, p. 821.
- - - - - - - - - -Footnotes- - - - - - - -
- - - - - - -
n13 Congress' expedition was possible partly because the same
change had earlier been approved by a Senatorial committee. S.
Rep. No. 2464, 81st Cong., 2d Sess. (1950).
- - - - - - - -End Footnotes- - - - - - - - -
The judgment of Congress is that federal law enforcement
officers may reasonably make warrantless arrests upon probable
cause, and no judicial experience suggests that this judgment is
infirm. Indeed, past cases suggest precisely the contrary
conclusion. The validity of federal arrests was long governed by
state law, United States v. Di Re, 332 U.S. 581, 589-592 (1948),
and no requirement that warrants be sought whenever there is time
to do so was imposed either by common-law history n14 or by
decisions of this Court. This Court has upheld an executive
[*779] arrest warrant for deportation, permitting the arrest to
occur without prior judicial scrutiny, Abel v. United States, 362
U.S. 217 (1960). [***47] And this Court has regularly affirmed
the validity of warrantless arrests without any indication whatever
that there was no time to get a warrant, and indeed where all the
circumstances pointed to the opposite conclusion. E. g., Ker v.
California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S.
307 (1959). The lower federal courts have certainly been of the
view that warrants are unnecessary even where there is time to
obtain them. Dailey v. United States, 261 F.2d 870 (C. A. 5th Cir.
1958), cert. denied, 359 U.S. 969 (1959) (statutory warrantless
arrest by federal narcotics agents); Smith v. United States, 103 U.
S. App. D. C. 48, 52, 254 F.2d 751, 755, cert. denied, 357 U.S. 937
(1958); Mills v. United States, 90 U. S. App. D. C. 365, 196 F.2d
600, cert. denied, 344 U.S. 826 [**2049] (1952) (sub silentio).
- - - - - - -Footnotes- - - - - - - - - - -
n14 There was no dispute between the two Coplon courts on this
point, since it was well established that even a private person
could make a warrantless arrest at common law for a felony which
had actually been committed, and a
PAGE 77
395 U.S. 752, *779; 89 S. Ct. 2034, **2049; LEXSEE
1969 U.S. LEXIS 1166, ***47; 23 L. Ed. 2d 685
peace officer could make such an arrest if he had reasonable cause
to believe the offense had been committed. 1 J. Stephen, A History
of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the
Crown 71-104 (first American ed. 1847).
- - - - - - -End Footnotes- - - - - - - -[***48]
In light of the uniformity of judgment of the Congress, past
judicial decisions, and common practice rejecting the proposition
that arrest warrants are essential wherever it is practicable to
get them, the conclusion is inevitable that such arrests and
accompanying searches are reasonable, at least until experience
teaches the contrary. It must very often be the case that by the
time probable cause to arrest a man is accumulated, the man is
aware of police interest in him or for other good reasons is on the
verge of flight. Moreover, it will likely be very difficult to
determine the probability of his flight. Given this situation, it
may be best in all cases simply to allow the arrest if there is
probable cause, especially since that issue can be determined very
shortly after the arrest.
Nor are the stated assumptions at all fanciful. It was
precisely these facts which moved the Congress to grant to the FBI
the power to arrest without a warrant without any showing of
probability of flight. Both the [*780] Senate and House
committees quoted the letter of the Acting Deputy Attorney General,
Peter Campbell Brown, who in asking for the new legislation
asserted: "Although [***49] it is recognized that in any felony
case the person to be arrested may attempt to flee, it is also
recognized that in any such case in which the defendant is arrested
without a warrant in an emergency situation, such defendant may be
able to present a rather convincing argument that he did not intend
to flee." S. Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H. R.
Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950). Some weight should
be accorded this factual judgment by law enforcement officials,
adopted by the Congress.
IV.
If circumstances so often require the warrantless arrest that
the law generally permits it, the typical situation will find the
arresting officers lawfully on the premises without arrest or
search warrant. Like the majority, I would permit the police to
search the person of a suspect and the area under his immediate
control either to assure the safety of the officers or to prevent
the destruction of evidence. And like the majority, I see nothing
in the arrest alone furnishing probable cause for a search of any
broader scope. However, where as here the existence of probable
cause is independently established and would justify a warrant for
a broader search for [***50] evidence, I would follow past cases
and permit such a search to be carried out without a warrant, since
the fact of arrest supplies an exigent circumstance justifying
police action before the evidence can be removed, and also alerts
the suspect to the fact of the search so that he can immediately
seek judicial determination of probable cause in an adversary
proceeding, and appropriate redress.
This view, consistent with past cases, would not authorize the
general search against which the Fourth [*781] Amendment was
meant to guard, nor would it broaden or render uncertain in any way
whatsoever the scope of searches permitted under the Fourth
Amendment. The issue in this case is not the
PAGE 78
395 U.S. 752, *781; 89 S. Ct. 2034, **2049;
LEXSEE 1969 U.S. LEXIS 1166, ***50; 23 L. Ed. 2d
685
breadth of the search, since there was clearly probable cause for
the search which was carried out. No broader search than if the
officers had a warrant would be permitted. The only issue is
whether a search warrant was required as a precondition to that
search. It is agreed that such a warrant would be required absent
exigent circumstances. n15 I would [**2050] hold that the fact
of arrest supplies such an exigent circumstance, since the police
had lawfully gained entry to the premises [***51] to effect the
arrest and since delaying the search to secure a warrant would have
involved the risk of not recovering the fruits of the crime.
- - - - - - - -Footnotes- - - - - - - - - -
n15 A search without a warrant "can survive constitutional
inhibition only upon a showing that the surrounding facts brought
it within one of the exceptions to the rule that a search must rest
upon a search warrant. Jones v. United States, 357 U.S. 493, 499;
United States v. Jeffers, 342 U.S. 48, 51." Rios v. United States,
364 U.S. 253, 261 (1960); Stoner v. California, 376 U.S. 483, 486
(1964). And "a search can be incident to an arrest only if it is
substantially contemporaneous with the arrest and is confined to
the immediate vicinity of the arrest. Agnello v. United States,
269 U.S. 20." Stoner v. California, supra, at 486; James v.
Louisiana, 382 U.S. 36, 37 (1965). There is thus no question that
a warrant to search petitioner's house would have been required had
he not been arrested there. In such cases, the officers are not
already lawfully on the premises, and there is not so often the
same risk of the destruction of evidence nor the necessity to make
an immediate search without the delay involved in securing a
warrant.
- - - - - -End Footnotes- - - - - - -[***52]
The majority today proscribes searches for which there is
probable cause and which may prove fruitless unless carried out
immediately. This rule will have no added effect whatsoever in
protecting the rights of the criminal accused at trial against
introduction of evidence seized without probable cause. Such
evidence could not be introduced under the old rule. Nor does the
majority [*782] today give any added protection to the right of
privacy of those whose houses there is probable cause to search.
A warrant would still be sworn out for those houses, and the
privacy of their owners invaded. The only possible justification
for the majority's rule is that in some instances arresting
officers may search when they have no probable cause to do so and
that such unlawful searches might be prevented if the officers
first sought a warrant from a magistrate. Against the possible
protection of privacy in that class of cases, in which the privacy
of the house has already been invaded by entry to make the arrest --
an entry for which the majority does not assert that any warrant
is necessary -- must be weighed the risk of destruction of evidence
for which there is probable cause to [***53] search, as a
result of delays in obtaining a search warrant. Without more basis
for radical change than the Court's opinion reveals, I would not
upset the balance of these interests which has been struck by the
former decisions of this Court.
In considering searches incident to arrest, it must be
remembered that there will be immediate opportunity to challenge
the probable cause for the search in an adversary proceeding. The
suspect has been apprised of the search by his very presence at the
scene, and having been arrested, he will soon be brought
PAGE 79 395 U.S. 752, *782; 89 S. Ct. 2034, **2050;
LEXSEE 1969 U.S. LEXIS 1166, ***53; 23
L. Ed. 2d 685
into contact with people who can explain his rights. As MR.
JUSTICE BRENNAN noted in a dissenting opinion, joined by THE CHIEF
JUSTICE and JUSTICES BLACK and DOUGLAS, in Abel v. United States,
362 U.S. 217, 249-250 (1960), a search contemporaneous with a
warrantless arrest is specially safeguarded since "such an arrest
may constitutionally be made only upon probable cause, the
existence of which is subject to judicial examination, see Henry v.
United States, 361 U.S. 98, 100; and such an arrest demands the
prompt bringing of the person arrested before a judicial officer,
where the existence [***54] of [*783] probable cause is to be
inquired into. Fed. Rules Crim. Proc. 5 (a) and (c). . . .
Mallory v. United States, 354 U.S. 449; McNabb v. United States,
318 U.S. 332." And since that time the Court has imposed on state
and federal officers alike the duty to warn suspects taken into
custody, before questioning them, of their right to a lawyer.
Miranda v. Arizona, 384 U.S. 436 [**2051] (1966); Orozco v.
Texas, 394 U.S. 324 (1969).
An arrested man, by definition conscious of the police interest
in him, and provided almost immediately with a lawyer and a judge,
is in an excellent position to dispute the reasonableness of his
arrest and contemporaneous search in a full adversary proceeding.
I would uphold the constitutionality of this search contemporaneous
with an arrest since there were probable cause both for the search
and for the arrest, exigent circumstances involving the removal or
destruction of evidence, and satisfactory opportunity to dispute
the issues of probable cause shortly thereafter. In this case, the
search was reasonable.