DRAPER v. UNITED STATES
No. 136
Supreme Court of the United States
January 26, 1959
358 U.S. 307
Argued December 11, 1958
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
Pеtitioner was convicted of knowingly concealing and transporting narcotic drugs in Denver, Colorado, in violation of
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
“The Commissioner . . . and agents, of the Bureau of Narcotics . . . may—
“(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs . . . where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person tо be arrested has committed or is committing such violation.”
The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh “probable cause” within the meaning of the
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 acсused‘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 em-
“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 mаn of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.5
Affirmed.
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,1 taken in the long view, have not given the protection to the citizen which the letter and spirit of the Amendment would seem to require. One reason, I think, is that wherever a culprit is caught red-handed, as in leading Fourth Amendment cases, it is difficult to adopt and enforce a rule that would turn him loose. A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer
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
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 well 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,4 were vicious in the same way as the general warrants, since they required no showing of “probable cause” before a magistrate, and since they allowed the police to search on suspicion and without “reasonable grounds” for believing thаt a crime had been or was being committed. Otis’ protest was eloquent; but he lost the case. His speech, however, rallied public opinion. “Then and there,” wrote John Adams, “the child Independence was born.” 10 Life and Works of John Adams (1856), p. 248.
The attitude of Americans to arrests and searches on suspicion was also greatly influenced by the lettres de cachet extensively used in France.5 This was an order emanating from the King and countersigned by a minister directing the seizure of a person for purposes of immediate imprisonment or exile. The ministers issued the lettres in an arbitrary manner, often at the request of the head of a noble family to punish a deviant son or relative. See Mirаbeau, A Victim of the Lettres de Cachet, 3 Am. Hist. Rev. 19. One who was so arrested
The Virginia Declaration of Rights, adopted June 12, 1776, included the forerunner of the
“That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” (Italics added.)
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:
“. . . general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any рerson without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred
may be searched and ransacked by the strong hand of power. We have infinitely more reason to dread general warrants here than they have in England, because there, if a person be confined, liberty may be quickly obtained by the writ of habeas corpus. But here a man living many hundred miles from the judges may get in prison before he can get that writ.” I Elliot‘s Debates 588.
The determination that arrests and searches on mere suspicion wоuld 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
“. . . it must be borne in mind that аny arrest based on suspicion alone is illegal. This indisputable rule of law has grave implications for a number of traditional police investigative practices. The round-up or dragnet arrest, the arrest on suspicion, for questioning, for investigation or on an open charge all are prohibited by the law. It is undeniable that if those arrests were sanctioned by law, the police would be in a position to investigate a crime and to detect the real culprit much more easily, much more efficiently, much more economically, and with much more dispatch. It is equally true, however, that society cannot confеr such power on the police without ripping away much of the fabric of a way of life which seeks to give the maximum of liberty to the individual citizen. The finger of suspicion is a long one. In an individual case it may point to all of a certain race, age group or locale. Commonly it extends to any who have committed similar crimes in the past. Arrest on mere suspicion collides violently with the basic human right of liberty. It can be tolerated only in a society which is willing to concede to its government powers which history and experience teach are the inevitable accoutrements of tyranny.” 47 Geo. L. J. 1, 22.
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 evidence7 that a
The requirement that the arresting officer know some facts suggestive of guilt has been variously stated:
“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.” Stacey v. Emery, supra, at 645.
“. . . good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the . . . agent, which in the judgment of the court would make his faith reasonable.” Director General v. Kastenbaum, supra, at 28.
asks an officer to arrest B. The duty of the officer was stаted as follows:
“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.
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 сould 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.8 The law goes far to pro-
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 bе 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.11
Notes
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. See Quincy‘s Mass. Rep., 1761–1772, Appendix I, p. 469.
“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 othеr 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.