Convicted of housebreaking and larceny in this District, the appellant Hanna grounds this appeal on the refusal of the District Court to suppress certain evi *724 dence; to wit, a quantity of money seized by Maryland police officers in a predawn search of a motel room occupied by appellant. Part of the hoard, paper money, was found under the sheets of the bed occupied by Hanna. The rest of the money, in coins, was found in a bag under his bed.
The search was admittedly without warrant. We need not examine most areas of the large body of authoritative rulings limiting very strictly the circumstances in which a search of premises without a warrant may constitutionally be made. For the only justification the prosecution urges for the search in this case is that it was a proper incident of a lawful arrest.
These are the circumstances of the arrest and search. Shortly after 4 a. m. state police officers came to a Maryland motel in response to a call from the motel keeper. When they arrived they were told that about 4 a. m. a man had rented two communicating rooms or cabins, ostensibly for himself and his invalid wife; that the motel keeper had not seen the woman but had seen two men entering the cabin with an overnight bag and what looked like a money bag. The motel keeper also related that he had looked through a window into one room and had observed the men sitting on the bed counting money. Thus informed, the police approached the rooms in question and found them dark and quiet. They knocked at the outer door which was opened from within by the occupant whom they confronted with a shot gun. As they entered they recognized the occupant as Robert Judd, a person with past convictions of theft who was then at large in Maryland on bond and was being sought by his bondsman because of delinquency in payment of the bond premium. Immediately upon thus recognizing Judd, the police placed him under arrest and proceeded to search the room he was occupying and the adjoining room in which appellant had retired. Actually, the officers pulled the cover from appellant, required him to get out of bed and thereafter found the money in and under the bed.
In this record, the interrogation of Sergeant Bond, the arresting officer and apparently the officer in charge of the police detail, reveals great uncertainty on his part as to the reason and basis for arresting Judd. Sergeant Bond was asked whether he intended to make an arrest when he knocked on the cabin door. He replied, “I did not know what I thought because I did not know what to expect.” In any event, the door was opened by a man whom the sergeant recognized as one who had been convicted of theft and was even then at large on bail. At that point and without more, the officer says he decided to make the arrest, and did so. In these circumstances, it is not surprising that the sergeant was vague and vacillating as to the reason for this arrest. At one point he stated that he arrested Judd for investigation in the light of the report he had received from the motel keeper. At another point he varied this by saying: “I arrested him for having in his possession narcotics and money and held him for investigation.” Of course, this could not have been true because the contraband was discovered after and not before the arrest. Again, the officer testified that he was influenced by recognizing Judd as a person on bail whose bondsman had complained of nonpayment of the bond premium. In this connection the sergeant made the puzzling statement, “I placed him under arrest because the fellow had been placed under arrest in our jurisdiction.”
Maryland recognizes and enforces the familiar rule that, where no crime has been committed in his presence, a peace officer may make an arrest without warrant only on a felony charge, and then only on probable cause in the sense of reasonable ground for believing that the person arrested has committed the felony charged. Edwards v. State, 1950,
In these circumstances the arrest could not provide any justification for the search which followed. 1 The entire nighttime search without warrant, including the excursion into the bedroom which yielded the money in controversy, must therefore be viewed as unreasonable and illegal. It violated Maryland law and, as will appear later, an unreasonable search by state officers also violates the Fourth Amendment as incorporated into the Fourteenth.
This brings us to a serious and important issue of law. May articles obtained by an unreasonable search and seizure by state officers, without any involvement of federal officers, be introduced in evidence in a court of the District of Columbia, or in any federal court?
We find it useful to trace the history of this question in the Supreme Court and, to some extent, in the Courts of Appeals. More than forty years ago, in Weeks v. United States, 1914,
More than thirty years later, but with the Weeks doctrine still unquestioned law,
3
this court decided, properly citing and relying upon Weeks, that articles
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seized by New York police officers in the course of an unreasonable search were admissible in evidence in a trial in the District of Columbia. Shelton v. United States, 1948,
Then came Wolf v. People of State of Colorado, 1949,
Oddly, even since the Wolf decision several Court of Appeals have followed Weeks as to the admissibility of evidence-obtained by state officers in federal trials, on the no longer tenable theory that the-Constitution does not prohibit unreasonable searches and seizures by state officers. E. g., Serio v. United States, 5 Cir., 1953,
On the other hand, since the Wolf case-justices of the Supreme Court have repeatedly recognized that it is no longer possible to accept the Weeks case as settling this problem of federal use of evidence procured by unreasonable state-search. Most recently, Mr. Chief Justice Warren has noted, ignoring the old Weeks ruling on the question, that “it has remained an open question in this-Court whether evidence obtained solely by state agents in an illegal search may be admissible in federal court despite the Fourth Amendment.” Benanti v. United States, 1957,
Even more striking are expressions of opinion by three other Justices. Mr. Justice Douglas, dissenting from the ultimate holding in Wolf v. People of State of Colorado, supra, tersely stated his conclusion that state and federal courts should be required to exclude evidence
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obtained by either state or federal officers through an unreasonable search.
Mr. Justice Clark has gone just as far. Only stare decisis has persuaded him to support the ultimate Wolf conclusion that a state court may use unconstitutionally obtained evidence. See Clark, J., concurring in Irvine v. People of State of California, supra,
Finally, Mr. Justice Harlan has put his view of the impact of Wolf on Weeks quite succinctly:
“ * * * the only difference I can see between the Wolf decision and Weeks v. United States, * * * excluding in federal criminal trials evidence obtained in contravention of the Fourth Amendment, is the difference between state and federal courts; in each case, the substance of the constitutional command is the same, but the nature of enforcement varies with the forum.” See dissenting opinion in Rea v. United States, 1956,350 U.S. 214 , 218, 220,76 S.Ct. 292 , 296,100 L.Ed. 233 .
The “constitutional command”, if we understand Justice Harlan correctly, enjoins federal and state officers alike from unreasonable searches and seizures. Thus, the Justice seems to be saying that the Weeks case requires one type of enforcement of this comprehensive command in federal courts, while the Wolf case permits less drastic enforcement in state courts.
On the other hand, one Justice seems to have committed himself since and despite the Wolf case to a continuing recognition in federal trials of the original Weeks distinction between federal and state seizures. We think this is the necessary meaning of Mr. Justice Burton’s concurrence in the dissent in Lustig v. United States, supra,
In cumulative effect these several pronouncements by so many Justices of the present Court support the rational argument that the Weeks and the Wolf decisions, considered together, make all evidence obtained by unconstitutional search and seizure unacceptable in federal courts. At very least it seems clear that this is a position toward which several Justices are strongly inclined, with one Justice apparently in disagreement and others indicating no more than that they regard the question as open. Certainly, neither the Weeks holding as to state-seized evidence nor our own Shelton decision can properly be regarded as binding precedents in the light of the subsequent Wolf ruling and the cited indications of the present views of so many justices.
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On principle and as a matter of sound policy in the administration of judicial proceedings in the District of Columbia we think all evidence obtained by violation of the Constitution should be excluded. In this area, as Mr. Justice Jackson has reminded us, decision “whether to exclude illegally obtained evidence in federal trials is left largely to our discretion, for admissibility of evidence is governed ‘by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.’ Fed.Rules Crim.Proc., 26.” See Irvine v. People of State of California, 1954,
“ * * * government ought not to use evidence obtained and only obtainable by a criminal act. * * * I think it a less evil that some criminals should escape than that the government should play an ignoble part.” Olmstead v. United States, 1928,277 U.S. 438 , 469, 470,48 S.Ct. 564 , 575,72 L.Ed. 944 .
This concern with the integrity of the judicial process must be most serious when the evidence has been obtained by a violation of the Constitution itself. The effectiveness of courts must always depend in large measure upon the respect which their processes command by reason of the integrity they reveal. From that point of view the courts of the United States, the ultimate guardians of the Constitution, cannot afford to play the “ignoble part” by themselves permitting the use of unconstitutionally obtained evidence, solacing and absolving themselves by deploring the unconstitutional seizure and pointing out that in some other proceeding sanctions can or should be imposed against the violation of our fundamental law. This very point was made in the Weeks case with reference to evidence which federal officers had obtained by unreasonable search:
“The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures * * * should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”232 U.S. at page 392 ,34 S.Ct. at page 344 .
But the Wolf case has made this reasoning equally applicable to the now equally unconstitutional seizures by state officers.
Beyond the issue of judicial integrity, we should not assume that the refusal of the federal courts to permit the use of improperly obtained evidence will have no effect in persuading state as well as federal officers to follow constitutional methods and procedures in obtaining evidence. In the Weeks case the Supreme Court went so far as to say that if articles can be seized illegally by federal officers “and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” It cannot rationally be argued that the constitutional protection is so gravely impaired by using such evidence in federal courts when a federal officer has violated the Fourth Amendment, but that there is no significant impairment when it is a state officer who has been guilty of an equivalent violation of the Fourteenth Amendment. Perhaps the sanction of excluding such evidence from federal trials has a greater deterrent effect upon federal officers than upon state officers. But there is no calculus to measure such a difference, nor is it the kind of difference which war *729 rants opposite conclusions as to the admissibility of the evidence.
The money in controversy should not have been admitted in evidence against appellant. He is entitled to a new trial at which this evidence shall be suppressed.
Reversed and remanded for proceedings consistent with this opinion.
Notes
. While our conclusion that the arrest was illegal is decisive, it seems appropriate to note in addition that, even if we should assume that the detention of Judd was justified, there would remain a serious question whether the circumstances of this arrest justified the ensuing exploratory search which carried the officers through a door, into an adjoining bedroom and into and under the bed in which another person had retired. Cf. United States v. Lefkowitz, 1932,
. A month earlier the Court had made an almost casual ruling to the same effect in different context. National Safe Deposit Co. v. Stead, 1914,
. Cf. Feldman v. United States, 1944,
. Mr. Justice Douglas also joined in a concurring opinion in Lustig v. United States, supra, preferring to base that decision on the broad proposition that “the important consideration is the presence of an illegal search. Whether state or federal officials did the searching is of no consequence to the defendant, and it should make no difference to us.”