UNITED STATES v. RABINOWITZ.
No. 293.
Supreme Court of the United States
Argued January 11, 1950. Decided February 20, 1950.
339 U.S. 56
Abraham Lillienthal argued the cause and filed a brief for respondent.
MR. JUSTICE MINTON delivered the opinion of the Court.
Respondent was convicted of selling and of possessing and concealing forged and altered obligations of the United States with intent to defraud. The question presented here is the reasonableness of a search without a search warrant of a place of business consisting of a one-room office, incident to a valid arrest.
On February 1, 1943, a printer who possessed plates for forging “overprints” on canceled stamps was taken into custody. He disclosed that respondent, a dealer in stamps, was one of the customers to whom he had delivered large numbers of stamps bearing forged overprints.1 On Saturday, February 6, 1943, with this information concerning respondent and his activities in the hands of Government officers, a postal employee was sent to respondent‘s place of business to buy stamps bearing overprints. He bought four stamps. On Monday, February 8, the stamps were sent to an expert to determine whether the overprints were genuine. On February 9 the report was received showing the overprints to be forgeries, having been placed upon the stamps after cancellation, and not before as was the Government‘s practice. On February 11 a further statement was obtained
In 1941 respondent had been convicted and sentenced to three months’ imprisonment on a plea of guilty to a two-count indictment charging the alteration of obligations of the United States, that is, of overprinting Government postage stamps, and the possession of a plate from which a similitude of a United States obligation had been printed. Thus, when the warrant for arrest was obtained, the officers had reliable information that respondent was an old offender, that he had sold four forged and altered stamps to an agent of the Government, and that he probably possessed several thousand altered stamps bearing forged overprints. While the warrant of arrest was not put in evidence it contained, as a Government witness testified on cross-examination, authority to arrest for more than the sale of the four stamps; it covered all the Government officers’ information.2
Armed with this valid warrant for arrest, the Government officers, accompanied by two stamp experts, went to respondent‘s place of business, a one-room office open to the public. The officers thereupon arrested the re
Respondent was indicted on two counts. He was charged in count one with selling four forged and altered stamps, knowing they were forged and altered and with the intent that they be passed as genuine.3 The second count charged that he did keep in his possession and conceal, with intent to defraud, the 573 forged and altered stamps.4
Respondent made timely motions for suppression and to strike the evidence pertaining to the 573 stamps, all of which were eventually denied. Respondent was convicted on both counts after trial before a jury in which he offered no evidence. Relying on Trupiano v. United States, 334 U. S. 699, the Court of Appeals, one judge dissenting, reversed on the ground that since the officers had had time in which to procure a search warrant and had failed to do so the search was illegal, and the evidence therefore should have been excluded. 176 F. 2d 732. We granted certiorari to determine the validity of the search because of the question‘s importance in the administration of the law of search and seizure. 338 U. S. 884.
Were the 573 stamps, the fruits of this search, admissible in evidence? If legally obtained, these stamps were competent evidence to show intent under the first count of the indictment, and they were the very things the possession of which was the crime charged in the second count.
“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.”
It is unreasonable searches that are prohibited by the
Of course, a search without warrant incident to an arrest is dependent initially on a valid arrest. Here the officers had a warrant for respondent‘s arrest which was, as far as can be ascertained, broad enough to cover the crime of possession charged in the second count, and consequently respondent was properly arrested. Even if the warrant of arrest were not sufficient to authorize the arrest for possession of the stamps, the arrest therefor was valid because the officers had probable cause to believe that a felony was being committed in their very presence. Carroll v. United States, 267 U. S. 132, 156-57.
The arrest was therefore valid in any event, and respondent‘s person could be lawfully searched. Could the
Decisions of this Court have often recognized that there is a permissible area of search beyond the person proper. Thus in Agnello v. United States, 269 U. S. 20, 30, this Court stated:
“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.”
The right “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” seems to have stemmed not only from the acknowledged authority to search the person, but also from the longstanding practice of searching for other proofs of guilt within the control of the accused found upon arrest. Weeks v. United States, 232 U. S. 383, 392. It became accepted that the premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant. Such a search was not “unreasonable.” Agnello v. United States, 269 U. S. 20, 30; Carroll v. United States, 267 U. S. 132, 158; Boyd v. United States, 116 U. S. 616, 623-24.
In Marron v. United States, 275 U. S. 192, the officers had a warrant to search for liquor, but the warrant did not describe a certain ledger and invoices pertaining to the operation of the business. The latter were seized during the search of the place of business but were not
“The officers were authorized to arrest for crime being committed in their presence, and they lawfully arrested Birdsall. 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. . . . The closet in which liquor and the ledger were found was used as a part of the saloon. And, if the ledger was not as essential to the maintenance of the establishment as were bottles, liquors and glasses, it was none the less a part of the outfit or equipment actually used to commit the offense. And, while it was not on Birdsall‘s person at the time of his arrest, it was in his immediate possession and control. The authority of officers to search and seize the things by which the nuisance was being maintained, extended to all parts of the premises used for the unlawful purpose.” Marron v. United States, 275 U. S. 192, 198–199.
We do not understand the Marron case to have been drained of contemporary vitality by Go-Bart Co. v. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. Those cases condemned general exploratory searches, which cannot be undertaken by officers with or without a warrant. In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe
What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are “unreasonable” searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Co. v. United States, 282 U. S. 344, 357. Reasonableness is in the first instance for the District Court to determine. We think the District Court‘s conclusion
Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. In a recent opinion, Trupiano v. United States, 334 U. S. 699, this Court first enunciated the requirement that search warrants must be procured when “practicable” in a case of search incident to arrest. On the occasion of the previous suggestion of such a test, Taylor v. United States, 286 U. S. 1, the Court had been scrupulous to restrict the opinion to the familiar situation there presented. Prohibition agents, having received complaints for about a year, went at 2:30 a. m. to a garage adjacent to a house, flashed a light through a small opening, and then broke in and seized liquor. The Court emphasized that “No one was within the place and there was no reason to think otherwise.” Id. at 5. Lest the holding that such a search of an unoccupied building
A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.
It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the
We do not treat additional questions raised by respondent in his brief to support the judgment of the Court of Appeals. We consider it appropriate to dispose of these issues on the basis of the excellent discussion below.
The motion to suppress the evidence was properly denied by the District Court. The judgment of the Court of Appeals is
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, dissenting.
Trupiano v. United States, 334 U. S. 699, was decided on the unarticulated premise that the
In recent years, the scope of the rule has been a subject of almost constant judicial controversy both in trial and appellate courts. In no other field has the law‘s uncertainty been more clearly manifested. To some extent that uncertainty may be unavoidable. The Trupiano case itself added new confusions “in a field already replete with complexities.” Trupiano v. United States, supra, 716. But overruling that decision merely aggravates existing uncertainty. For as MR. JUSTICE FRANKFURTER points out, today‘s holding casts doubt on other cases recently decided. And I do not understand how trial judges can be expected to foresee what further shifts may occur. In my judgment it would be wiser judicial policy to adhere to the Trupiano rule of evidence, at least long enough to see how it works.
That rule is based upon very strict requirements designed to narrow the occasions upon which officers can make searches and seizures without judicial warrant. Unquestionably its application will now and then permit
I would affirm the judgment of the Court of Appeals.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins, dissenting.
The clear-cut issue before us is this: in making a lawful arrest, may arresting officers search without a search warrant not merely the person under arrest or things under his immediate physical control, but the premises where the arrest is made, although there was ample time to secure such a warrant and no danger that the “papers and effects” for which a search warrant could be issued would be despoiled or destroyed?
The old saw that hard cases make bad law has its basis in experience. But petty cases are even more calculated to make bad law. The impact of a sordid little case is apt to obscure the implications of the generalization to which the case gives rise. Only thus can I account for a disregard of the history embedded in the
- It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the
Fourth Amendment as the Court approached it in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, in Silverthorne Lumber Co. v. United States, 251 U. S. 385, in Gouled v. United States, 255 U. S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about theFourth Amendment , namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper. - This is the
Fourth Amendment :“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.”
These words are not just a literary composition. They are not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to the words. The clue to the meaning and
“depend upon the presence of the party in the premises searched at the time of the arrest . . . would make crucial a circumstance that has no rational relevance to the purposes of the privilege. The feelings which lie behind it have their basis in the resentment, inevitable in a free society, against the invasion of a man‘s privacy without some judicial sanction. It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the ‘right of privacy.’ . . . The history of the two privileges is altogether different; the
Fourth Amendment distinguishes between them; and in statutes they have always been treated as depending upon separate conditions.” 176 F. 2d 732, 735.
3. This brings me to a consideration of the right of search and seizure “incident to arrest.” Undue haste in coming to that issue too readily leads to getting off the track of the
4. What, then, is the exception to the prohibition by the
5. Another exception to the constitutional prohibition of unreasonable searches is likewise rooted in necessity. The search without a warrant of moving objects—vehicles and vessels—was sanctioned in Carroll v. United States, 267 U. S. 132, on the ground that “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.” Id. at 153. Furthermore, the limits of the exception were carefully defined in terms of necessity, for the Court added:
“In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause.” Id. at 156.
Even as to moving vehicles, this Court did not lay down an absolute rule dispensing with a search warrant. It limited dispensation to the demands of necessity, where want of time precluded the obtaining of a warrant. The necessity founded on the time factor which guided the Court in the Carroll case cannot justify the search here made of the respondent‘s premises, for there was ample time to obtain a warrant before the arrest and even on the occasion of the arrest.
6. It is in this connection that the body of congressional enactments becomes significant, particularly legislation contemporaneous with the adoption of the Bill of Rights. If explicit legislation was deemed necessary to inspect without warrant even vessels and vehicles, and if
7. With only rare deviations, such as today‘s decision, this Court has construed the
“It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments. The effect of the decisions cited is: that such rights are declared to be indispensable to the ‘full enjoyment of personal security,
personal liberty and private property‘; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, -- the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.”
8. The opinion of the Court insists, however, that its major premise—that an arrest creates a right to search the place of arrest—finds support in decisions beginning with Weeks v. United States, 232 U. S. 383. These decisions do not justify today‘s decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. This progressive distortion is due to an uncritical confusion of (1) the right to search the person arrested and articles in his immediate physical control and (2) the right to seize visible instruments or fruits of crime at the scene of the arrest with (3) an alleged right to search the place of arrest. It is necessary in this connection to distinguish clearly between prohibited searches and improper seizures. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure when found by legal means. E. g., Amos v. United States, 255 U. S. 313; Byars v. United States, 273 U. S. 28; Taylor v. United States, 286 U. S. 1. Thus, the seizure of items properly subject to seizure because in open view at the time of arrest does not carry with it the right to search for such items.
“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. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim. Plead. and Practice, 8th ed., § 60; Dillon v. O‘Brien and Davis, 16 Cox C. C. 245. . . . Nor is it the case of burglar‘s tools or other proofs of guilt found upon his arrest within the control of the accused.” 232 U. S. 383, 392.
The statement does not even refer to a right to search the place of arrest, and the authorities cited merely support the assertion of a right to search the person arrested and to seize visible instruments or fruits of crime.4
The authority to search which flows from the right to arrest was next discussed by this Court in Carroll v. United States, 267 U. S. 132, 158:
“When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.”
These limited statements in the Weeks and Carroll opinions were uncritically expanded in Agnello v. United States, 269 U. S. 20, 30:
“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.”
If such a right was “not to be doubted” it certainly cannot be supported by the cases cited. Carroll and Weeks may
In Marron v. United States, 275 U. S. 192, these carelessly phrased dicta were for the first time reflected in the result. The statement in the opinion that officers “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,” 275 U. S. at 199, was drastically qualified by Go-Bart Co. v. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. The teaching of those cases is that the warrant of arrest carries with it authority to seize all that is on the person, or in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person. The Lefkowitz decision emphasized that the things seized in Marron “being in plain view were picked up by the officers as an incident of the arrest. No search for them was made.” 285 U. S. at 465. Thus explained, Marron stands merely for the historically justified right to seize visible instruments of crime at the scene of the arrest.
In reliance on the prior dicta and on the Marron decision, it was asserted in Harris v. United States, 331 U. S. 145, 150, that “Search and seizure incident to lawful arrest is a practice of ancient origin.” Literally, this is true: the right to search the person arrested and to seize visible instruments of crime has a good legal title. But judicial history cannot be avouched if this statement is meant to cover the right to search the place of arrest. Such a claim can only be made by sliding from a search of the person to a search for things in his “possession” or “in his immediate control,” without regard to the treacherous ambiguity of these terms, and then using
The short of it is that the right to search the place of arrest is an innovation based on confusion, without historic foundation, and made in the teeth of a historic protection against it.
9. If the exception of search without a warrant incidental to a legal arrest is extended beyond the person and his physical extension, search throughout the house necessarily follows. I am aware that most differences in the law depend on differences of degree. But differences though of degree must not be capricious; the differences must permit rational classification. If upon arrest you may search beyond the immediate person and the very restricted area that may fairly be deemed part of the person, what rational line can be drawn short of searching as many rooms as arresting officers may deem appropriate for finding “the fruits of the crime“? Is search to be restricted to the room in which the person is arrested but not to another open room into which it leads? Or, take a house or an apartment consisting largely of one big room serving as dining room, living room and bedroom. May search be made in a small room but not in such a large room? If you may search the bedroom part of a large room, why not a bedroom separated from the dining room by a partition? These are not silly hard cases. They put the principle to a test. The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the
“Whatever the casuistry of border cases, it is broadly a totally different thing to search a man‘s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him, once you have gained lawful entry, either
by means of a search warrant or by his consent. The second is a practice which English-speaking peoples have thought intolerable for over a century and a half. It was against general warrants of search, whose origin was, or was thought to be, derived from Star Chamber, and which had been a powerful weapon for suppressing political agitation, that the decisions were directed, of which Entick v. Carrington, 19 How. St. Trials, 1029, is most often cited. These cases were decided just after the colonists had been hotly aroused by the attempt to enforce customs duties by writs of assistance, and when within 30 years they framed the Fourth Amendment it was general warrants that they especially had in mind. Boyd v. U. S., 116 U. S. 616 ....“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 were not found on the premises; but it is small consolation to know that one‘s papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.”
The highly experienced Commission on Law Observance and Enforcement appointed by President Hoover spoke of “the high standards of conduct exacted by Englishmen of the police.” Vol. IV Reports of the National Commission on Law Observance and Enforcement (“Lawlessness in Law Enforcement“) p. 259. It is suggested that we cannot afford the luxury of such
12. 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
13. Even if the test of reasonableness is to be taken out of the context of the history and purpose of the
“Although over a considerable period numerous complaints concerning the use of these premises had been received, the agents had made no effort to obtain a warrant for making a search. They had abundant opportunity so to do and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility.” 286 U. S. at 6.
That the arrest in that case was made after the search was begun does not affect its importance. Opportunity to obtain a search warrant is either relevant or irrelevant in determining the application of the
In the case before us there is not the slightest suggestion that the arresting officers had not the time to
It is most relevant that the officers had “no excuse for not getting a search warrant,” 176 F. 2d 732, 735, for that is precisely what the
14. It is not as though we are asked to extend a mischievous doctrine that has been shown to hamper law enforcers. we are asked to overrule decisions based on a long course of prior unanimous decisions, drawn from history and legislative experience. In overruling Trupiano we overrule the underlying principle of a whole series of recent cases: United States v. Di Re, 332 U. S. 581; Johnson v. United States, 333 U. S. 10; McDonald v. United States, 335 U. S. 451, based on the earlier cases. For these cases ought not to be allowed to remain as
Notes
“Q. Now, when you went to Mr. Rabinowitz‘s place of business, all you had with you was a warrant to arrest him in connection with the alleged sale of those four stamps; is that correct?
“A. And all information contained in the arrest warrant; yes.
“Q. I didn‘t hear the last part of your answer.
“A. In our questions a few minutes back, I stated that the four stamps were specifically mentioned in the application for the warrant for arrest, but that there was other information in my possession that was included in that warrant for arrest.
“Q. Well, wasn‘t the warrant of arrest issued solely on the charge that Mr. Rabinowitz had sold four stamps containing false or altered overprints? Wasn‘t that what the warrant of arrest was issued for?
“A. Primarily, yes, but not completely.”
See Title XI of the Act of June 15, 1917, 40 Stat. 217, 228, now