MR. JUSTICE WHITTAKER delivered the opinion of the Court.
Petitioner was convicted of knowingly concealing and transporting narcotic drugs in Denver, Colorado, in violation of 35 Stat. 614, as amended, 21 U. S. C. § 174. His conviction was based in part on the use in evidence against him of two "envelopes containing [865 grains of] heroin" and a hypodermic syringe that had been taken from his person, following his arrest, by the arresting officer. Before the trial, he moved to suppress that evidence as having been secured through an unlawful search and seizure. After hearing, the District Court found that the arresting officer had probable cause to arrest petitioner without a warrant and that the subsequent search and seizure were therefore incident to a lawful arrest, and overruled the motion to suppress. 146 F.Supp. 689. At the subsequent trial, that evidence was offered and, over petitioner's renewed objection, was received in evidence, and the trial resulted, as we have said, in petitioner's conviction. The Court of Appeals affirmed the conviction, 248 F.2d 295, and certiorari was sought on the sole ground that the search and seizure violated the Fourth Amendment
On the morning of September 8, Marsh and a Denver police officer went to the Denver Union Station and kept watch over all incoming trains from Chicago, but they did not see anyone fitting the description that Hereford had given. Repeating the process on the morning of September 9, they saw a person, having the exact physical attributes and wearing the precise clothing described by Hereford, alight from an incoming Chicago train and
26 U. S. C. (Supp. V) § 7607, added by § 104 (a) of the Narcotic Control Act of 1956, 70 Stat. 570, provides, in pertinent part:
The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment, and "reasonable grounds" within the meaning of § 104 (a), supra,
Petitioner does not dispute this analysis of the question for decision. Rather, he contends (1) that the information given by Hereford to Marsh was "hearsay" and, because hearsay is not legally competent evidence in a criminal trial, could not legally have been considered, but should have been put out of mind, by Marsh in assessing whether he had "probable cause" and "reasonable grounds" to arrest petitioner without a warrant, and (2) that, even if hearsay could lawfully have been considered, Marsh's information should be held insufficient to show "probable cause" and "reasonable grounds" to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant.
Considering the first contention, we find petitioner entirely in error. Brinegar v. United States, 338 U.S. 160, 172-173, has settled the question the other way. There, in a similar situation, the convict contended "that the factors relating to inadmissibility of the evidence [for] purposes of proving guilt at the trial, deprive[d] the evidence as a whole of sufficiency to show probable cause for the search . . . ." Id., at 172. (Emphasis added.) But this Court, rejecting that contention, said: "[T]he so-called distinction places a wholly unwarranted emphasis upon the criterion of admissibility in evidence, to prove the accused's guilt, of the facts relied upon to show probable cause. That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is
Nor can we agree with petitioner's second contention that Marsh's information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by "special employee"
"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, at 175. Probable cause exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162.
THE CHIEF JUSTICE and MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, dissenting.
Decisions under the Fourth Amendment,
Of course, the education we receive from mystery stories and television shows teaches that what happened in this case is efficient police work. The police are tipped off that a man carrying narcotics will step off the morning train. A man meeting the precise description does alight from the train. No warrant for his arrest has been—or, as I see it, could then be—obtained. Yet he is arrested; and narcotics are found in his pocket and a syringe in the bag he carried. This is the familiar pattern of crime detection which has been dinned into public consciousness as the correct and efficient one. It is, however, a distorted reflection of the constitutional system under which we are supposed to live.
With all due deference, the arrest made here on the mere word of an informer violated the spirit of the Fourth Amendment and the requirement of the law, 26 U. S. C. (Supp. V) § 7607, governing arrests in narcotics cases. If an arrest is made without a warrant, the offense must be committed in the presence of the officer or the officer must have "reasonable grounds to believe that the person to be arrested has committed or is committing" a violation of the narcotics law. The arresting officers did not have a bit of evidence, known to them and as to which they could take an oath had they gone to a magistrate for a warrant, that petitioner had committed any crime. The arresting officers did not know the grounds on which the informer based his conclusion; nor did they seek to find out what they were. They acted solely on the informer's word. In my view that was not enough.
The rule which permits arrest for felonies, as distinguished from misdemeanors, if there are reasonable grounds for believing a crime has been or is being committed (Carroll v. United States, 267 U.S. 132, 157),
George III in 1777 pressed for a bill which would allow arrests on suspicion of treason committed in America. The words were "suspected of" treason and it was to these words that Wilkes addressed himself in Parliament. "There is not a syllable in the Bill of the degree of probability attending the suspicion. . . . Is it possible, Sir, to give more despotic powers to a bashaw of the Turkish
These words and the complaints against which they were directed were will known on this side of the water. Hamilton wrote about "the practice of arbitrary imprisonments" which he denounced as "the favorite and most formidable instruments of tyranny." The Federalist No. 84. The writs of assistance, against which James Otis proclaimed,
The attitude of Americans to arrests and searches on suspicion was also greatly influenced by the lettres de cachet extensively used in France.
The Virginia Declaration of Rights, adopted June 12, 1776, included the forerunner of the Fourth Amendment:
The requirement that a warrant of arrest be "supported by evidence" was by then deeply rooted in history. And it is inconceivable that in those days, when the right of
When the Constitution was up for adoption, objections were made that it contained no Bill of Rights. And Patrick Henry was one who complained in particular that it contained no provision against arbitrary searches and seizures:
The determination that arrests and searches on mere suspicion would find no place in American law enforcement did not abate following the adoption of a Bill of Rights applicable to the Federal Government. In Conner v. Commonwealth, 3 Binn. (Pa.) 38, an arrest warrant issued by a magistrate stating his "strong reason to suspect" that the accused had committed a crime because of "common rumor and report" was held illegal under a constitutional provision identical in relevant part to the Fourth Amendment. "It is true, that by insisting on an oath, felons may sometimes escape. This must have been very well known to the framers of our constitution; but they thought it better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression." Id., at 43-44. In Grumon v. Raymond, 1 Conn. 40, the warrant stated that "several persons are suspected" of stealing some flour which is concealed in Hyatt's house or somewhere else, and ordered the constable to search Hyatt's house or other places and arrest the suspected persons if found with the flour. The court held the warrant void, stating it knew of "no such process as one to arrest all suspected persons, and bring them before a court for trial. It is an idea not to be endured for a moment." Id., at 44. See also Fisher v. McGirr, 1 Gray (Mass.) 1; Lippman v. People, 175 III. 101, 51 N. E. 872; Somerville v. Richards, 37 Mich. 299; Commonwealth v. Dana, 2 Metc. (Mass.) 329, 335-336.
Down to this day our decisions have closely heeded that warning. So far as I can ascertain the mere word of an informer, not bolstered by some evidence
The requirement that the arresting officer know some facts suggestive of guilt has been variously stated:
The Court is quite correct in saying that proof of "reasonable grounds" for believing a crime was being committed need not be proof admissible at the trial. It could be inferences from suspicious acts, e. g., consort with known peddlers, the surreptitious passing of a package, an intercepted message suggesting criminal activities, or any number of such events coming to the knowledge of the officer. See People v. Rios, 46 Cal.2d 297, 294 P.2d 39. But, if he takes the law into his own hands and does not seek the protection of a warrant, he must act on some evidence known to him.
Here the officers had no evidence—apart from the mere word of an informer—that petitioner was committing a crime. The fact that petitioner walked fast and carried a tan zipper bag was not evidence of any crime. The officers knew nothing except what they had been told by the informer. If they went to a magistrate to get a warrant of arrest and relied solely on the report of the informer, it is not conceivable to me that one would be granted. See Giordenello v. United States, 357 U.S. 480, 486. For they could not present to the magistrate any of the facts which the informer may have had. They could swear only to the fact that the informer had made the accusation. They could swear to no evidence that lay in their own knowledge. They could
With all deference I think we break with tradition when we sustain this arrest. We said in United States v. Di Re, supra, at 595, ". . . a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." In this case it was only after the arrest and search were made that there was a shred of evidence known to the officers that a crime was in the process of being committed.
Grau v. United States, 287 U.S. 124, 128, contains a dictum that "A search warrant may issue only upon evidence which would be competent in the trial of the offense before a jury (Giles v. United States, 284 Fed. 208; Wagner v. United States, 8 F.2d 581) . . . ." But the principles underlying that proposition were thoroughly discredited and rejected in Brinegar v. United States, supra, 338 U. S., at 172-174, and notes 12 and 13. There are several cases in the federal courts that followed the now discredited dictum in the Grau case, Simmons v. United States, 18 F.2d 85, 88; Worthington v. United States, 166 F.2d 557, 564-565; cf. Reeve v. Howe, 33 F.Supp. 619, 622; United States v. Novero, 58 F.Supp. 275, 279, but the great weight of authority is the other way. See, e. g., Wrightson v. United States, 236 F.2d 672 (C. A. D. C. Cir.); United States v. Heitner, supra (C. A. 2d Cir.); United States v. Bianco, 189 F.2d 716 (C. A. 3d Cir.); Wisniewski v. United States, 47 F.2d 825 (C. A. 6th Cir.); United States v. Walker, 246 F.2d 519 (C. A. 7th Cir.); Mueller v. Powell, 203 F.2d 797 (C. A. 8th Cir.). And see Note, 46 Harv. L. Rev. 1307, 1310-1311, criticizing the Grau dictum.
"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." (Italics added.)
"He ought to inquire and examine the circumstances and causes of the suspicion of A. which tho he cannot do it upon oath, yet such an information may carry over the suspicion even to the constable, whereby it may become his suspicion as well as the suspicion of A." Id., at 91.
"Some things are to be more deplored than the unlawful transportation of whiskey; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the laws of the land. There are two reasons for this: one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.
"In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant's person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. . . . It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt." Town of Blacksburg v. Beam, 104 S.C. 146, 148, 88 S. E. 441.