*1 KER v. CALIFORNIA. et ux. Argued 53. December 1962. Decided June
No. 1963. *2 Stanley argued Robert W. the cause and filed a brief petitioners. for Ringer, Deputy Attorney
Gordon General of California, him argued respondent. the cause for With on the brief Stanley Attorney Mosk, General, were and William E. James, Attorney Assistant General. Wirin, Cooksey L. Fred and filed a brief
A. Okrand Paul Cali- the American Civil Liberties Union Southern for curiae, urging reversal. fornia, amicus of the opinion Clark delivered the Court Justice Mr. which state searches with reference the standard (Part I), together and evaluated with seizures must be standard, opinion applying Justice Mr. Black, Mr. Justice Stewart Justice White Mr. join (Parts II-V), judgment announced the Court.
This
questions
case raises séarch
seizure
under the
Ohio,
of Mapp
(1961). Petitioners,
rule
S. 643
U.
husband and
were
mari-
wife,
possession
convicted
juana-in
of §
violation
11530 of the
California Health
Safety Code. The California District
of Appeal
Court
App.
Rptr.
despite
195 Cal.
2d
affirmed,
Cal.
of petitioners
contention
their
arrests
apartment
probable
without warrants lacked
cause1 and
thereto and
evidence
introduced
.incident
seized
their trial was' therefore
The California
inadmissible..
Supreme
opinion
petition
Court denied without
for
hearing. This being
arriving
the first case
here since our
opinion in Mapp which
opportunity
would afford suitable
explication
holding
further
of that
light
of inter-
vening experience,
granted
we
certiorari.
The state courts’ conviction and affirmance are based on these events, which petitioners’ culminated Sergeant Angeles arrests. Cook of the County Los Sber-? iff’s Office, negotiating purchase marijuana from one him Terrhagen, accompanied bowling alley about p.' July m. on where were meet *3 Terrhagen’s Terrhagen “connection.” went inside and returned shortly, pointing to a 1946 as his “con- DeSoto explaining nection’s” automobile and they were to meet him “up by oil the fields” near Fairfax and Slauson Avenues, Angeles. they Los As location, neared that Terrhagen again pointed traveling out the DeSoto ahead of them, stating kept the “connection” his supply of narcotics up in They parked “somewhere the hills.” near some vacant fields in vicinity the of the intersection of Fairfax and Slauson, shortly thereafter, and, reappeared pulled DeSoto and up beside them. The deputy recognized then Murphy,, driver as one Roland “mug” photograph whose he had seen whom he knew and from other narcotics officers large-scale to be-a seller of ,’out marijuana currently on bail in connection with narcotics charges. 1 This initially contention was prior to the trial. Section raised^ provides California Code, Penal for a motion to set aside ground
information on the the defendant has been committed probable without presented cause. Evidence on that issue was out presence jury, and, following the court’s denial of the petitioners motion, jury. were tried and convicted and off toward entered the DeSoto drove Terrhagen They Sergeant oil with while the waited. Murphy, fields carrying car shortly, Terrhagen Murphy’s left returned vehicle, his own package marijuana and entered Terrhagen they Terrhagen’s residence! There drove gave Sergeant Cook, it to pound marijuana cut one Sergeant him. The later re- previously paid who had ported Angeles County this occurrence to Officers Los Berman and Warthen, the latter whom had observed the occurrences as well. following day, July 27, Murphy placed
On the was unde: Warthen, surveillance. Officer who had observed Terrhagen-Murphy episode night, previous assigned duty. Markman were At Officer . about p. evening they Murphy’s 7 m. that followed DeSoto as which, bowling alley he drove to same he had met Terrhagen previous evening. Murphy inside, on the went emerged about 10 minutes and to a house drove where he made a brief visit. The officers continued follow him but,’ upon losing sight proceeded of his vehicle, vicinity of Fairfax and Slauson Avenues where parked; There, immediately across the street from the Terrhagen Sergeant location at which Cook had met Murphy previous evening, on the the officers observed parked automobile occupant they whose lone later deter- petitioner George Douglas mined to be the Ker.
The officers then Murphy past They saw drive them. sight him of him extinguished followed but lost when he *4 lights his and entered oil fields. The officers returned to vantage point and, shortly thereafter, observed their, Murphy and park return behind Ker.. From loca tion approximately 1,000 from feet vehicles, they two through glasses. watched field Murphy was seen leaving walking and up to the driver’s side of Ker’s DeSoto car, “appeared where he to have conversation with him.” It was shortly p. before m. and distance pass anything to see for the officers great was twilight too had the former Ker and Murphy between .whether he approached. anything his hands had talking, the officers Ker were Murphy While closely their' faces in order to see past driven them from. Ker’s vehicle. the license number order take followed and the officers away Ker drove Soon thereafter middle he him but him when made U-turn lost Now, hav- opposite in the direction. the block and drove Ker, registration checked the lost contact with ing Vehicles, and ascertained with the Motor Department at Douglas Ker registered was automobile informa- then this They Slauson. communicated after 15 to 30 minutes Berman, tion to Officer within meeting Murphy. Ker and observing between Though previous and Markman had officers Warthen Ker, knowledge of Berman received information had that Ker beginning various times November “he selling marijuana from his and that apartment was from Mur- possibly securing Marijuana was Ronnie Murphy.” early alias of Roland phy who In rece'yed Ker “mug” photograph Berman had Officer Inglewood Department. from the Police He further May July 27, had re- testified that between he Black, as to Ker who ceived information from one Robert given leading had information three previously at least and whose information was believed Berman arrests According to be Black had Berman, reliable. Officer him told on four or five May after occasions including others, himself, purchased Ker and had mari- from juana Murphy.2
2During hearing supra, on the motion, see Black note § defense, admitting petitioners testified knew the but that he denying gave George that he Officer Berman information about Ker. Black first then denied but admitted that he had with Officer met presence Berman another officer in 'whose Berman said given. information about Ker was *5 Ker knowledge meeting of with the
Armed .between Ker’s Berman’s information as to Murphy and with and fourth, dealings the three officers and Murphy, with which to Love, proceeded immediately the address Officer They through license had obtained Ker’s number. they they following which been found automobile had —and lot parking had learned was Ker’s—in the which also multiple-apartment building and ascertained was in the then apartment. They there someone Kers’ manager to building the office of the and obtained went him a to the passkey apartment. from Officer Markman any evi- intercept was stationed outside the window might ejected, dence and the other three officers apartment. and entered Officer Berman unlocked door, in order opened proceeding quietly, testified, he prevent fouijd peti- of evidence,3 destruction and George sitting living tioner Ker in the room. as he Just himself, stating identified are Sheriff’s Narcotics “We Officers, conducting a investigation,” petitioner narcotics emerged Ker from thé kitchen. Berman testified Diane. he repeated immediately his identification her and ' to the walked kitchen. Without entering, he observed through the open doorway a small atop scale the kitchen upon which sink, lay brick-shaped package “brick-like — containing, green leafy recognized substance”- which he marijuana. petitioners He beckoned the into the following kitchen where, knowledge denial contents the two-and-two-tenths-pofind package 3 Arresting Officers Berman and Warthen had been attached to the Angeles County narcotics detail of Los Sheriff's three office for years, respectively. participated four Each had in hundreds of involving marijuana. arrests many Warthen “many, testified that on experience occasions'' in his with “persons narcotics arrests have pushed flushed narcotics toilets, down them down drains sinks many getting other prior my methods rid of them entrance . . : .'' placed ownership, he as to its question to .answer
failure a. violating Nar- the State *6 suspicion them under arrest for. entered the Markman testified that he cotic Law. Officer half” and a “a apartment approximately minute, minute Berman was at which time Officer officers, after the other sequence As this placing petitioners the under arrest. that his arrest of Ker testified events, petitioner George before and immediately upon entry took the officers’ place in kitchen. they of marijuana saw the brick the denial of Subsequent petitioners’ the arrest and the possession narcotics, officers, proceeding of other the any package a without search found half-ounce warrants, atop in another the the kitchen and marijuana cupboard any if had Petitioners were asked bedroom dresser. officers, automobile than the one the other observed and in Diane George replied negative, the while Ker having next learned day, remained silent. On the registered Ker, in name of Diane automobile was the warrant, this car without a Officer Warthen searched com- glove in marijuana marijuana and seeds the finding found partment marijuana under the rear seat. The cupboard in scale, on kitchen that found the kitchen the in bedroom, and that found Diane Ker’s in the against all automobile4 introduced into evidence were petitioners. in Appeal affirming
The California District Court cause .probable that there was convictions found arrests; apartment into was for of arrest and was not and that the purpose unlawful; being search incident the arrests was likewise lawful against petitioners.' fruits admissible evidence its were affirmance, These conclusions essential to the since Court in had Supreme the California held that evi- that, opinion, For the reasons in V of find discussed we § validity is not the search the automobile before us and we pass therefore do not on it. by means of
dence obtained unlawful searches and seizures Cahan, People criminal trials. was inadmissible v. 2d P. 2d 905. The court concluded that Cal. findings implied trial findings its view Ohio, intervening court, this Court’s decision Mapp v. change original justify did “not our conclu- supra, App. 2d, 773. Rptr., sion.” Cal. at 15 Cal. at
I. Ohio, In Mapp 646-647, 657, Boyd we followed (1886), held Fourth Amendment,5 implemented by the self-incrimi- the Fifth,6 nation clause of forbids Federal Govern- by using ment man of crime testimony convict *7 by from him and papers obtained unreasonable searches in spe- seizures defined the Fourth Amendment. as We cifically Mapp held in prohibition this constitutional against through enforceable the States the Fourteenth Amendment.7 This as the means, Mapp, we said in against Fourth Amendment “is enforceable them [the by the same sanction of against exclusion as is used states] by Federal Government,” application the of the same prohibiting constitutional standard “unreasonable
5 right people “The houses, persons, to be secure in their papers, effects, against seizures, unreasonable shall searches violated, upon probable not be no issue, cause, and Warrants shall but by supported affirmation, particularly or describing Oath place persons searched, things to be and the be seized.” 6 person any “No compelled . . . shall be criminal case be a against witness himself . . . .” 7 holding enforceability Our as to of this federal constitutional against following rule had its States source declaration v. Colorado, (1949): 338 U. S. 27-28 Wolf security privacy against arbitrary “The one’s instrusion police the core of Fourth im- Amendment —is . . . —which plicit concept liberty’ in ‘the of ordered such as enforceable against through the States the Due Process Clause.”
31 now face at 655. We S., 367 U. and seizures.” searches the ex- requires Mapp to whether question specific the clusion, Dis- case which California of evidence in It is lawfully seized. has held to be Appeal trict Court hold- Mapp initial test under perhaps ironic that the voluntarily whose decision ing California, from comes has been commended exclusionary rule 1955 adopt the 651-652; Ohio, supra, at previously. Mapp us See v. States, S. Elkins v. United U. and sei search
Preliminary to our’examination us to indicate might helpful here, zures involved it recog it must be Mapp. First, not decided in what was admissibility governing the “principles nized that trials have been in federal criminal of evidence from the Constitu solely ... to those derived restricted authority supervisory over the tion. In the exercise its justice of criminal federal courts ... administration to be has . . . formulated rules evidence this Court prosecutions.” federal criminal McNabb applied in Miller v. (1943); S. cf. United U. (1958); United Nardone v. U. S. , (1937). Mapp, however, S. 379 established States U. authority assumption by supervisory no over this Court Cleary Bolger, (1963), state courts, 392, 401 cf. implied it total obliteration of state and, consequently, relating and searches in favor of federal to arrests laws federalism; no death knell for our Mapp sounded law. *8 States, of Elkins v. United it echoed sentiment rather, healthy depends upon “a federalism at supra, of needless conflict between state federal avoidance urging cooperation by itself courts” “[f]ederal-state standards will of crime under constitutional in solution by recognition if of their now mutual promoted, be respect the same criteria obligation to fundamental S., (Emphasis added.) at 367 U. 658. approaches.” task of attempt impossible lay- did not Mapp Second, ing application specific “fixed formula” for down a prohibition against of constitutional unreason- cases seizures; it be- recognized able searches that we would ‘recurring “met of the of questions with reasonableness ” and “at is in any.rate, searches’ that, ‘[Reasonableness ” for the determine,’ first instance ... [trial court] id., indicating given weight at thus that the usual findings courts. of trial
Mapp, course, explica- did lend itself to detailed standards) tion of since the search there was involved clearly legality stamp unreasonable bore no even Id., Supreme from the Court. at is Ohio 643-645. This true also of Elkins v.United where all of the courts assumed in question the unreasonableness search and this “invoked” its “supervisory power Court over the justice administration criminal courts,” federal S., declaring 364 U. that the so evidence seized by state officers was prosecution. inadmissible in federal in a prosecution being federal court, this Court law, announced that test one of federal course “[t]he enlarged by what one court may neither state have coun- nor tenanced, may diminished what another color- have ably suppressed.” Id., Significant at 224. in thé Elkins holding statement, is the apposite “it can here, fairly in applying be said that the Fourth Amendment Court has seldom practical shown itself unaware of the demands investigation of effective criminal and law Id., enforcement.” at 222.
Implicit Fourth protection from Amendment’s recognition unreasonable searches'and seizures its individual freedom. safeguard That has declared been to be “as of the very essence of liberty” constitutional of which “is guaranty important as as impera- guaranties tive are the rights other fundamental of the individual citizen . . . .” Gouled v. United (1921); cf. Powell v, Alabama, 287 U. S. *9 language Amend (1932). While 45, 65-68 is every search that unrea it “forbids “general,” ment is to be protects all, suspected those known sonable; it innocent, unquestionably well as offenders as the search was made . . . .” premises extends where Co. Importing. v. United Go-Bart (1931). Mr. Butler for Justice there stated is to construed liberally Court that Amendment be “[t]he duty and all owe the for its enforce vigilance effective impairment rights ment there shall be lest Ibid. He adopted.” of which also rec protection it was ognized for the formula determination “[t]here its own of reasonableness. Each- case is to be decided on Ibid.; States see United facts and circumstances.” Rabinowitz, Rios (1950); U. S. S. 364 U. long-established recognition
This that standards Court’s under the Fourth Amendment are not reasonableness susceptible of Procrustean forward application carried enforced proscriptions when Amendment’s are against the States through the Fourteenth Amendment. although the And, standard of reasonableness is the same Fourth and Amendments, under the the de Fourteenth system compel distinguish mands of our federal us to super between evidence held inadmissible because of our over visory powers federal courts and that inadmis held prohibited sible by because the United States Constitu tion. reiterate that a search We the reasonableness of is in the first instance a substantive determination the trial from the made court and circumstances facts o light f case and of the “fundamental criteria” laid down the Fourth Amendment and in opinions applying Court Find Amendment. ings of reasonableness, of course, respected only are insofar as consistent guaran with federal constitutional tees. weAs have above and in cases in- stated other findings of state
volving rights, federal constitutional *10 against examination courts no means insulated are York, 316 g., 315, v. New See, Spano here. e. U. S. Arizona, (1958); (1959); 390, Thomas U. S. Louisiana, (1939). While 354, Pierre v. con- prius appraise does not sit as in nisi this Court necessary it tradictory questions, factual where will, an inde- rights, the determination of constitutional make and the pendent facts, findings, examination for itself whether in the record so that it can determine e., con- decision tó the fundamental —i. as reasonableness been stitutional —criteria established this Court have respected. thereby precluded The States are not from governing developing arrests, workable searches rules practical crim- seizures meet “the demands effective investigation and States, inal law enforcement” provided those rules do not violate the constitutional proscription of unreasonable searches and and the seizures concomitant command that evidence so is inad- seized against standing missible one who has to complain. See Jones v. United (1960). S. 257 U. Such standard implies derogation uniformity applying federal guárantees constitutional recogni- but is tion that conditions and vary just circumstances do investigative and enforcement techniques.
Applying this federal constitutional pro- standard we ceed to examine the entire record findings of including the California’s courts to determine whether the evidence from petitioners seized was constitutionally admissible under the circumstances this case.
II. The issue, evidence at in order to be admissible, must be the product of a search incident to a lawful since arrest, the officers had no search warrant. The lawfulness of the warrant, without in turn, upon be based must circum facts and exists “where ‘the probable cause, which knowledge of which within stances officers’] [the trustworthy information suffi reasonably had they [are] man of cau to warrant .a reasonable cient in themselves being has been or is that’ offense tion the belief States, 338 U. S. Brinegar committed.” v. United from Carroll v. United (1949); quoting 175-176 Fischer, 49 (1925); People v. accord, S. 267 U. Bompensiero. v. Su (1957); 2d 2d 967 Cal. 317 P. 2d 250 Court, 44 2d 281 P. perior Cal. at the knowledge of the officers
information within the apartment, as California’s time arrived the Kers’ for a grounds furnished specifically clearly found, courts that., com George had petitioner Ker reasonable belief *11 of committing of possession and the offense mitted was a and Warthen observed Markman marijuana. Officers evening of and Ker on the Murphy rendezvous between previous of arrest which was a virtual reenactment the the and Murphy, Ser night’s Terrhagen encounter between to Cook, by Murphy the sale geant which concluded of Sergeant package marijuana a of Terrhagen and the of Terrhagen for one which paid pound the had which latter with Terrhagen from after the encounter he received light the and of Murphy. sure, To be distance lack seeing from not see they the officers did prevented men, between the two but the virtual any pass substance a identity surrounding of circumstances the warranted suspicion remaining sale strong the one element —a it was part narcotics —was a of this encounter as But arrest previous night. depend the Ker’s does not single episode Murphy. with Ker’s upon this When pursuit, thwarted officer’s learned his U-turn from Department name and address of Motor reported occurrence Ber Vehicles Officer turn, man. an Berman, revealed information from reliability informer whose had been tested previously, as from well not had been sources, other that Ker selling marijuana from his but apartment also that likely- was That supply Murphy source himself. hearsay destroy information was does not its role in estab- probable lishing Brinegar supra. cause. In we held Draper v. United 307 (1959), U. S. information a informer, from reliable corroborated agents’ accuracy observations as to the description presence the accused and of his informer’s particular at a was to establish place, probable sufficient cause for arrest without warrant.8 The corroborative elements in Draper were but themselves, innocuous tip personal here both the informer’s observations specific involving connected 'Ker illegal with activities man, Murphy, marijuana the same known To dealer. say this coincidence information was sufficient support reasonable belief of the officers that Ker illegally in possession indulge was marijuana is to understatement. Ker,
Probable cause for the arres’ of petitioner Diane present while not time officers entered apartment her pres was nevertheless husband, ent at the time of her Upon arrest. their . announcement of identity, the officers were met only by George Ker but Ker, also Diane who was emerging from kitchen. immediately Officer Berman walked from doorway emerged and, with she *12 entering, out observed the mari brick-shaped package of plain juana in Even view. that assuming presence her 8 Draper upon probable In the arrest cause was under authorized 7607, authorizing agents 26 U. S. C. narcotics arrest § make an they grounds without warrant if have "reasonable to believe that person to be arrested has is committing committed or vio such lation.” Under Code, may California Penal an officer arrest § without ;has a warrant if he “reasonable cause to believe that person ....’’ be felony arrested has committed a prominent position in a contraband room with the a small a reason not alone establish would kitchen sink on the joint was officers’ belief she for the ground able accompanied fact was husband, that with her possession using his information had been Ker by the officers’ activi for narcotics operations of as a base apartment her the time- of say that at we cannot Therefore, ties. for a grounds sufficient reasonable arrest there were was com husband, her well as Ker, that Diane as belief marijuana possession mitting offense officers. presence of the
HI. petitioners’ lawfulness of the It contended probable cause, was they upon were even if based arrests, entry. Court, This cases method by vitiated recognized that long has Amendment, Fourth under the is to be deter for federal offenses lawfulness of arrests is not viola law insofar to state it mined reference Miller United the Federal Constitution. tive of Re, Di (1948); States supra; United n. 5 10, 15, S.U. Johnson v. officers of these arrests state fortiori, A lawfulness by California law. to be determined offenses for state peace officers Code, 844, permits § Penal California after purpose dwelling place break into purpose. explaining admittance demanding with the terms comply did not Admittedly the officers and without quietly entered this statute since prevent in order to the destruction announcement, Appeal, District Court of California contraband. , peace officer, may arrest, . . in all cases a “To make an break person in which the window of house open the door or believing grounds for reasonable . . . is, or which [he has] arrested explained the having admittance be, demanded him to after is desired.” purpose for which admittance *13 38
however, held that
the circumstances here came within
judicial exception
engrafted upon
a
which had
been
Ruiz,
by
see,
g.,
a
of decisions,
People
statute
series
e.
App.
(1956); People
146 Cal.
2d
Since the from by police unreasonable searches and seizures officers here be determined whether the search was inci examining dent to a lawful we arrest, are warranted whether, notwithstanding that arrest to determine its legality entering under state law, method the home may offend federal constitutional standards of reasonable legality accompany ness therefore vitiate the of an ing search. find no such on the We offensiveness facts Assuming here. entry by the officers’ of a use key manager from legal equivalent obtained is the of a “breaking,” Keiningham see v. United S.U. App. 276, D. F. C. 2d (C. A. D. C. Cir. 1960), recognized early it has been from the common law breaking permissible such in executing an under certain circumstances. See Wilgus, Arrest Without a Warrant, Mich. L. Rev. 800-806 Indeed, 3109,10 C. dealing § with the execution of search officers, warrants federal breaking authorizes very doors in words similar to those the California stat ute, both including statutes a requirement of notice of authority purpose. In Miller v. United supra, this Court held unlawful an and therefore arrest, its accompanying search, ground on the that the District of may “The open any officer break outer or inner door or window house, any of a part or house, anything therein, a or execute warrant, search if, after authority notice of purpose, he is necessary refused admittance when person to liberate himself or a aiding him in the execution warrant.” entering dwelling fully did not officers
Columbia before *14 identity their satisfy requirement disclosing of the of the stated that “the lawfulness purpose. Court by be reference without warrant is to determined arrest of the reasoning the By validity to state law. ... like to of is to be determined reference petitioner arrest at 305- S., law of 357 U. the of the District Columbia.” accepted conceded and Court parties 306. The there testing the arrest under District criteria “substantially to the re- identical” law were Columbia Id., however, at 306. Here, §of 3109. quirements' an exception clearly law include criteria under California are circumstances where requirement to the notice exigent Moreover, aof federal stat- as violation insofar present. Miller, case of evidence required ute the exclusion admissibility is for state where inapposite prosecutions, is Finally, basis governed by constitutional standards. ex- exception statute, the California as judicial of the to Maddox, People v. 46 Cal. Traynor Justice pressed by 2d, answers the effectively at 294 P. 2d, peti- tioners’ contention: primary pur in mind must be that the
“It borne guarantees pose prevent of the constitutional security people unreasonable invasions effects, when persons, papers, houses, dwelling officer has reasonable to enter cause incident to make an and as an arrest is authorized make reasonable search, Suspects and his are not unreasonable. search right destroy dispose no constitutional or have guarantees evidence, and no basic constitutional are getting because' an officer violated succeeds place to a where is entitled to be more quickly he . complied
than he
had he
with
would,
section 844.
Moreover,
ex-planation
since the demand and
require
ments
section
are a
codification of the com
mon law, they may reasonably
interpreted
limited
common law
rules that
compliance
if
required
officer’s peril
would have been
increased
the arrest frustrated had he demanded
entrance and
purpose.
(Read
stated his
Case,
Conn.
110];
Rest.,
Am. Dec.
Torts,
see
[10
d.).
§
com.
Without
hindsight
the.benefit
and ordinarily on
spur
moment,
officer
must decide these questions in the first instance.”
exigent
such
No
circumstances as would authorize non-
compliance with the California
argued
statute were
Miller, and the
expressly
Court
discussing
from
refrained
*15
question, citing
the
the Maddox case
disapproval.
without
357
S.,U.
at 309.11
justification
Here
for the officers’fail-
give
ure to
notice
uniquely present.
In addition to the
officers’ belief that Ker was in possession of narcotics,
which could
quickly
easily
be
destroyed, Ker’s fur-
tive conduct in eluding them shortly before the arrest was
ground for the
might
belief that he
well have been ex-
pecting
poíice.12
We therefore hold
par-
that
11
rejected
Nor has
proposition
the Court
noncompliance
that
may be
exigent
subsequent
reasonable in
circumstances
Miller.
In
Wong
States,
Sun v. United
(1963),
41 method officers’ of this case the circumstances ticular California, was not unrea- law of sanctioned entry, Amend- the Fourth the standards of under sonable through the Fourteenth to the States applied ment Amendment.
IV. Having petitioners’ arrests it remains lawful, held the produced whether search only to consider as incident was lawful leading, to their convictions evidence war a search without those The doctrine that arrests. ar if incident a lawful may lawfully rant conducted with Fourth recognized has. as consistent long rest been protection against unreasonable searches Amendment’s States, and seizures. See Marron v. United States, United (1947); S. Harris v. (1927); U. States, Abel United (1960); Kaplan, U. S. A Land Search and Seizure: No-Man’s Criminal (1961). L. 490-493 The Law, Cal. Rev. cases imposed requirement the arrest be under have authority that it be lawful warrant, an arrest but supra, Marron v. United United at 198-199; See Rabinowitz, Agnello supra, States v. 61; cf. question 30-31 remains U. S. recognized action exceeded whether officers’ here bounds of incidental search. *16 that was
Petitioners contend the search unreasonable practicably that the officers could have obtained a search not practicability obtaining warrant. The warrant is controlling sought factor when justi- a search to be Rabinowitz, States v. United arrest, fied incident as only with concern ourselves what the officers had reason to believe entry. States, at the time their United Johnson v. 333 U. S. Re, (1948). As the Court said in United States Di v. 17 S. 332 U. (1948), legal “a search is not made it turns to.be what or bad up. good change In law it is when starts and does not it (Emphasis added.) dug up subsequently. character from” what is we supra; validity but need not rest of the search here Rabinowitz, agree on we since with the.California court clearly that time was of essence. officers’obser- The which corroboration, probable vations furnished George m., cause for Ker’s occurred at arrest, p. about' approximately one hour before the time arrest. The officers had reason to quickly because of act Ker’s furtive conduct and the likelihood mari- juana would be distributed or before a warrant hidden could night.13 be obtained at that time of Thus the facts States, bear no Trupiano resemblance those in v. United S. 699 (1948), agents U. where federal for weeks three possession knowledge had been in sufficient to secure search warrant. petitioners’
The search of apartment the. was well within upheld States, limits Harris v. United which supra, also a private apartment concerned dwelling. The evi- here, Harris, dence unlike that in was instrumentality very petitioners crime for which were arrested, the record does not indicate that the search here was as in time or in extensive area as that upheld Harris. petitioners’ only remaining contention is discovery of the brick of marijuana justified cannot be incidental to arrest it preceded since the arrest. This con- tention is contrary of course George testimony, Ker’s reject but we it in any event. may While arrest merely be used pretext as the for a warrant, search without the California court specifically found and the record supports both that the officers apartment entered the 13In cases regarded a search could not be as incident petitioner present because the was not at the time of and search, compelling absence circumstances, such as the .the threat of evidence, supported destruction of holdings the Court’s searches without warrants were Chapman unconstitutional. See United Jeffers, United States (1961); 365 U. S. (1951); Taylor v. 1, 5 U. S.
43
they had
George Ker and that
arresting
purpose
entry.14
to the
prior
that arrest
cause to make
probable
Officer Ber
it was unreasonable
say
cannot
that
We
for
kitchen,
emerge from the
seeing Diane Ker
man, upon
adjacent
of that
room.
doorway
to walk to the
merely
holding
court’s
that the
agree
thus
with the California
We
did not constitute
discovery
marijuana
of-the brick
merely
placed
the officer
saw what was
before
search, since
Lee,
him in full
United States v.
V. petitioners state the record bears out officers searched Diane Ker’s day automobile on the subse- quent to her arrest. The search, of that reasonableness however, was not raised in nor petition certiorari, for was-it discussed the brief here. do Ordinarily “[w]e not reach for constitutional questions not raised Stein, parties,” (1954), Mazer v. 201, 206, U. S. n. 5 nor extend our beyond specific ques- review those federal United, 12, supra, Johnson Compare at 40. There note justified Court held that a search could not be as incident t officers, prior room, arres since the into a hotel probable occupant. had no cause the arrest of the The Court quarters gaining private living stated that officer access to “[a]n personifies under of his must .color office and of the law which he then Here, have some basis in valid law for the intrusion.” course, probable petitioner George cause for Ker arrest of provided that valid basis. *18 . gives raised in the state court The record properly
tions was raised in the trial court no indication that the'issue or in Appeal, the District Court of the latter court did adjudicate it and we therefore find no reason to it reach on the record.15
For judgment these reasons the of the California Dis- Appeal trict is Coúrt Affirmed Mr. concurring' Justice Harlan, the result. there has been a
Heretofore
well-established line of
demarcation between the
principles gov-
constitutional
erning the standards for
searches and
and'
state
seizures
controlling
those
activity
federal
kind. Federal
this
subject
searches
seizures have been
require-
ment
“reasonableness”
contained
the Fourth Amend-
requirement
ment,
that
has been
elaborated over
years in
litigation.
federal
State
on
seizures,
searches
the other hand,
judged,
my
prop-
and in
view
have.been
erly .so, by
more
concept of “fundamental”
flexible
rights
fairness,
“basic to a free
society,” embraced
.
Due Process Clause
the Fourteenth Amendment.
petitioners
objection
The record shows that
made no
to the
any
evidence,
failing
admission of
thus
state
observe a
People
procedural
Brittain,
requirement,
App.
v.
149 Cal.
2d
Ohio,
Mapp
supra,
(1957);
However,
See v. Wolf Connecticut, S.U. 165; Palko v. S. California, U. principle distinction Today constitutional 319. state, are and seizures searches Henceforth abandoned. apply standards as constitutional the same Judged to be system. in the federal power federal further extension opinion this my
In Noia, 391; S. Fay v. U. cases, cf. state criminal over v. Wash 353; Draper California, 372 U. S. Douglas v. only a few weeks decided S. 487—all ington, 372 U. is uncalled for and unwise. It uncalled ago, quite Cali particularly more generally, and the States because improv evidencing concern about increasingly are fornia, *19 itself this Court procedures, own criminal ing their (see one occasion on more than recently has observed ante, 31), 345; p. Wainwright, S.U. Gideon v. requirements Amendment’s the Fourteenth and because against serious as a bulwark fairness stand of fundamental is unwise The rule shortcomings in this field. local enforcement differing law with their States, because in a constitutional strait put' not be should problems, not, than States, likely more and also because the jacket, uncertainty since this atmosphere in an placed will be and seizure are realm of search decisions Court’s v. Cf. Harris hardly predictability. for their notable dis States, (Appendix to S. 175-181 U. Frankfurter). latter (The Mr. senting Justice opinion the,fact forcefully illustrated point indeed ma constitutional rule the its new application first if divided.) And equally finds jority itself Court in order to relax Fourth Amendment standards prepared be in unduly fettering this would to avoid * Mapp Ohio, change purport did not judged; seizures were to be which state searches and standards rule of Weeks United “exclusionary” held rather it applicable to the States. S. was 232 U. federal derogation of law enforcement standards one system Fourth is to mean Amendment —unless Federal thing something the States and else for the Government.
I can good coming see no from this constitutional I In judging adventure. state searches and seizures would to adhere to established Fourteenth continue concepts judg- fairness. So Amendment fundamental ing case, I concur the result. with whom Brennan,
Mr. Justice Jus- Chief Douglas Goldberg and Mr. Justice tice, Mr. Justice join.
I join Part I of Mr. opinion Justice Clark’s holding . the Mapp therein that “as we said . . Fourth against Amendment ‘is . . . enforceable [the by the same sanction of exclusion as is used States] against the Federal Government,’ by application same constitutional standard prohibiting ‘unreasonable ” searches and Only seizures.’ our dis- Brother Harlan sents from that holding; judge he would state searches “by seizures the more flexible of ‘funda- concept mental’ fairness, rights ‘basic to a society,’ free em- in the Due Process Clause of the Fourteenth braced Amendment.”
However, Clark, Black, Mr. Justice Mr. Justice *20 and Mr. Justice White do not Mr. Justice Stewart believe that requirement the federal of reasonableness contained in the Fourth Amendment was violated in this case. Justice, Douglas, Chief Mr. Justice Mr. Goldberg I have contrary the view. For Justice even on the premise probable there was cause federal for the arrest of George Ker, standards arrests the petitioners of these were nevertheless illegal, because the unannounced intrusion of the arresting officers into their apartment violated the Fourth Amendment. Since the Ohio, requires illegal, Mapp arrests were product exclusion of the evidence which was the of the the incident to those arrests. search a person
Even if exists for the arrest of probable cause Fourth within, Amendment violated unan an police private nounced intrusion into a with or home, an warrant, except (1) .persons without where the already authority within know of the officers’ purpose, (2) justified or where the officers are belief that persons peril are bodily harm, within imminent of or in. (3) those-within, where made of the presence aware of. (because, example, someone outside has been a there knock at are door), engaged activity then justifies the officers escape belief that being destruction evidence is attempted.
I. firmly long adoption It was established before the Rights the Bill liberty fundamental against protection police individual includes unannounced entries. embody Fourth Amendment did but “[T]he old, principle English yet liberty, principle newly won, expression ‘every that finds another the maxim man’s ” home is Fraenkel, Concerning his castle.’ Searches and 34 Harv. L. Seizures, (1921); Rev. Frank Maryland, 359 (dissenting U. opinion). S. 376-382 early As Semayne’s Case, Rep. 91a, Eng. 5 Co. 91b, Rep. 194, (1603), it was declared that all “[i]n (if King party, cases when the the sheriff the doors be not open) may party’s break house, either to arrest him, or to do other K[ing]’s execution process, if he cannot it, otherwise enter. But he breaks before ought he signify coming,- cause and to make request open doors . .” (Emphasis . . supplied.) a century leading Over later the upon commentators criminal law affirmed English continuing vitality of *21 48 683; (1736), Hale, 1 the Crown principle. Pleas (6th 1787), 2 Pleas of the Crown ed. also Hawkins,
see 320-321.1 Per 1; Crown Law Foster, (1762), § c. , supplied confirmation haps emphatic most its .was Rights. Bill of of the years before the ratification 35 Curtis’, Case, Rep. decided Eng. Fost. In a murder of 1756, the on trial defendant, an entry attempting officer who was serve Crown officer had failed warrant, pleaded that because the and his before adequately to announce himself mission to his was breaking doors, forceful resistance homicide. justified killing justifiable and the was therefore recognizing repeated prin In the defense the court having legal to arrest ciple “peace-officers, warrant may open doors, for a break peace, breach after given having due notice demanded admittance and warrant”; “no form precise court continued that in a of this kind” required words case because “[i]t party notice, is sufficient that hath the officer claiming cometh not as a mere under trespasser, but act authority Eng. . . at proper Fost., 136-137, . Rep., (Emphasis, supplied.) principle was 68. again long after confirmed not Fourth Amendment part of our Abbott, J., became Constitution. said C. Brown, Eng. 2 B. 592, 593-594, Launock v. & Ald. (1819): Rep. 482, 483 I clearly opinion
“. . . of a am the case that, misdemeanour, previous requisite.... such demand is It is law should be for if no so; reásonable that the representative: man, upon Hale’s was “A sus view that arrests picion felony, may open doors, party upon break if refuse open Hale, (1736), demand to them Pleas of the Crown United States, Miller generally 301, 306-310; 583. See 357 U. S. Accarino v. App. 394, 398-402, D. C. 456, 460-464; Thomas, Arrest, F. 2d The Execution of Warrants [1962] Crim. L. Rev. 520, 597, 601-604. *22 previous made, possible demand is how is it for a of party object person to know what the break- a ing open may right the door be? He has to con- as an on his aggression private property, sider it 2 justified resisting which will he the utmost.” The protections individual freedom into .carried Boyd States, United Fourth Amendment, v. 616, 116 U. S. 630, undoubtedly firmly included this established require ment of by police an announcement of purpose officers authority before an breaking into home. individual’s requirement procedural nicety is mere or formality upon attendant of a service warrant. Decisions both the federal and recognized, state courts have as did the English requirement that the courts, is of the essence protections safeguard substantive indi liberty.3 vidual The Court of for Appeals the District of Columbia Circuit has said: .
“. . is no opinion there division of among the learned authors . . . that even may where officer 2 Compare Abbot, in Burdett v. Bayley, J., also the statement of 1, 162-163, Eng. (1811): 14 Rep. 501, East. 104 563 every peace public “Now in breach of the are considered as interested, process against execution of offender is the public right assertion a apprehend and in eases, all such I right open officer has a door, provided to break the outer there is a request of admission first purpose, made for the and a denial parties who are within.” Burton, Eng. also v. 3 223, Rep. See Bos. & Pul. 127 123 Ratcliffe (1802); Kerbey Denby, 336, Eng. Rep. v. 1 M. & 150 W. 463 Evans, cf. Park v. (1836); 62, Eng. Rep. 211; Penton v. Hob. 80 Brown, Stamp, 698, Eng. Rep. 1 Percival 1193; Keble 83 9 Ex. Eng. Rep. (1853). 167, Gatewood v. United generally See App. D. C. 226, 791; 229, 789, 2d Bishop, 209 F. New Criminal Procedure (2d 1913), §201; Varon, ed. Searches, Seizures and Immunities (1961), 399-401; Day Berkman, Search and Seizure and the Exclusionary A Mapp Rule: Re-Examination Ohio, the Wake of 13 West. Res. L. Rev. 79-80 warrant, open a door without power to break
have hé notifies the do so unless first lawfully he cannot entry.” his occupants purpose demand S. D. C. App. 85 U. Accarino v. 2d 462. F. of Massachusetts Supreme Judicial Court Similarly, the declared in 1852: every house of law that man’s
“The maxim officer of to restrain an . . hasnot the effect . castle entering dwelling-house breaking from the law serving process upon a criminal purpose for the *23 party In case house of the occupant. such forcibly sanctuary may for him, the same of proper such officer after a notification entered upon of and a demand entry, purpose by them to open house, and a refusal inmates to Bartlett, (Mass.) 501, 10 Cush. do so.” Barnard v. Smith, 1 N. H. 346. cf. State v. 502-503; require- of enforced the the frontier States also Courts recognized high example, For Tennessee’s court ment. a police might a officer break into home to serve for warrant “after demand admittance McCord, of McCaslin v. 116 Tenn. purpose,” notice Commonwealth, cf. Hawkins v. 83; 94 S. W. have Ky. majority a of States en- Indeed, 395. substantially similar to requirement statutes acted statute, the federal § Penal Code 844 and California §C. U. S. 3109.4 1411.; Code, 15, 155; Ann. Ala. Tit. Ariz. Rev. Stat. Deer § § 13—
ing’s 844; (1) ; Penal Code Fla. Stat. Ann. 901.19 Idaho Code § § CáJ. 19-611; 9-1009; §.755.9; Iowa Burns’ Ind. Ann. Stat. Code Ann. § § 62-1819; Ky. 70.078; Rev. Stat. Dart’s Kan. Gen. Stat. § § La. Crim. 629.34; 72; Mich. 28.880; Minn. Code, Art. Stat. Ann. Stat. Ann. § § ; §2471; Mo. Rev. Stat. Mont. Rev. Code Miss. § Code 5.44.200 94-6011; 29-411; 171.275; Rev. Nev. Rev. Stat. Mc Neb. Stat.§ § § Kinney's 178; 15-44; Page’s N. N. Code Gen. Stat. Y. Crim. C. § § carrying protec forward the Moreover, addition law, by English afforded the Framers also already tions -Amendment once and by the Fourth meant eliminate general of war practice all searches under the odious against English of assistance law rants writs helpless. experience The colonial had left them generally unmistakably was “fresh in the memories under the writs and established independence of those who achieved our Boyd v. government.”5 form of our supra, problem general under 625. not, course, exactly that of warrant was unannounced upon cause, probable intrusion to arrest with warrant or clearly the two common practices but invited abuses. One grounds Otis’ eloquent James indictment repetition writs bears here: one of English
“Now the most essential branches of liberty is the freedom one’s house. A man’s house castle; is his and. whilst he quiet, he is as well is. 2935.15; Ann., Rev. 194; Ohio Code Ann. Okla. Stat. Tit. Ore. § § Code; 53-198; §133.320; 34.1606; Rev. Stat. S. C. S. D. § Code-§ §40-807; 77-13-12; Code Ann. Utah Tenn. Code Ann. Wash. Rev. Comp. §10.31.040; Wyo. Code Stat. 10-309. § Compare- Proc:, Institute, Code Crim. American Law Official (1930), Draft §28:. *24 “Right building. officer, to into break An to order of officer by warrant,
make arrest either virtue of a or when authorized felony provided to make such warrant, a a without' as. door, 21, may open any building section break or window of in which to,, person reasonably the to be arrested is or be,, if believed he authority purpose.” refused admittance after he has announced and 5 Henry 98, 100-101; Lasson, also v. See 361 S.U. History Development and of the Fourth to the .Amendment (1937), II; Barrett, Rights, United States Constitution c. Personal Property Rights, Amendment, Supreme and the Fourth Court 1960 46, 70-71; Comment, Supreme Review Search and in the Seizure Amendment, Court: Shadows on the Fourth 28 U. of Chi. L. Rev. Skinner, (1961). Compare 678-679 East-India Co. v. Comb. Eng. Rep. 90 516. writ, if it in his castle. prince
guarded as .This totally annihilate this legal, would should be declared may officers enter our Custom-house privilege. to per- are commanded they wfe please; houses when may enter, entry. Their menial servants mit their every thing way: in their bars, and may locks, break through revenge, break malice whether suspicion with- man, court, inquire. no can Bare Tudor, Life of James Otis oath is sufficient.” out (1823), 66-67. liberty if not are dangers the to individual
Similar, same, of into police in unannounced intrusions the involved respects intrusions homes of citizens. Indeed in two such sanctity to privacy are even more offensive In place general home. the first service warrants usually preceded by and writs of assistance was at least In sóme form notice- or demand for admission. by very the writs of terms plaqe second assistance might daylight By sig- be served during hours.6 contrast, nificant unannounced of the Ker timing appears after and such apartment dark, occurred common police at least in practice, California.7 Lasson, TheHistory Development of the Fourth Amend (1937), ment United States Constitution 54. practice respects, police these two In of unannounced entries by night considerably protected rights is also more offensive health-inspection the Fourth Amendment than use of powers concerning constitutionality entry, other administrative Maryland, Frank supra; sharply, which this Court has divided Price, Ohio ex rel. Eaton my S. 263. Since Brother Clark U: rely upon decisions, I does not either of those have no occasion dis applicability the case cuss further either to at bar. For further problems cases, generally, Waters, consideration of raised those see Entry Rights Officers, in Administrative L. U. of Chi. Rev. 79 Inspections (1959); Comment, Health and' “Unreasonable State Search”: The Frank Exclusion of Civil Searches, L. Minn. Rev. *25 day deny too late in a lawful
It is much that entry protections is as essential to vindication as, example, probable Amendment for cause to Fourth warrant for a not incidental to an arrest or a search search Gouled arrest. This Court United settled a lawful the indis 305-306, entry 255 U. S. is pensable predicate of a reasonable search. held there We if would Fourth that a search violate the Amendment whether, illegal accomplished by force or “by were illegal by threat or show of force” or “obtained stealth rigid Similarly, instead of force coercion.” restric upon tions unannounced entries are essential if the Fourth prohibition against security Amendment’s invasion of the any meaning. have privacy home is-to course, It is true, that the decision of Court which federal forbids officers arrest and search after an Miller v. entry, unannounced upon did not rest constitutional but rather doctrine
upon an of this supervisory powers. exercise Court’s But disposition way implied in no result the same compelled by was not the Fourth Miller Amendment. simply an instance of usual practice of the Court questions not to decide constitutional when a nonconsti tutional for decision basis is available. See International Street, Assn. Machinists U. S. 749-750. The upon analogy drew to a statute, result there federal sim ilar in' § its terms with the federal officers concededly complied had not -an entering to make Nothing arrest. we in Miller said so much as intimated that, such decision, without basis the Fourth Amend . required ment would have the same The im result indeed, plication, quite For contrary. history in Miller in support adduced of the nonconstitu ground tional persuasively demonstrates that the Fourth protections security Amendment’s include against police. invasions householder unannounced
II. Amendment reflects the The command of the Fourth history breaking lesson of an door is, that “the outer dangerous proceed- a general, violent, so and obnoxious ing, adopted only cases, that it should be extreme where 1 an Justice of the requisite.” Burn, immediate (28th Peace 1837), ed. 275-276. clearly recog-
I English have found no decision any first exception requirement police nizes to the that the give forcibly before authority purpose notice and entering Exceptions early a home. sanctioned were Case, g., e. Read American but these cases, Conn. rigidly narrowly were confined to situations general within reason and spirit requirement. the the exceptional thought circumstances have been Specifically, surrounding to exist element, one the facts when, as particular entry support finding the a those within actually pres- knew or of the must have known officer’s Miller v. purpose ence and seek admission. Cf. supra, example, at 311-313. For the earliest exception case of an seems have been that “[i]n escape after on arrest, officer, pursuit fresh a, offender to house in may which he takes break refuge, recapture doors to him, without felony, the case and without notice demand for admission to warrant, Wilgus, the house of the Arrest Without a offender.”8 English recognized' It is not clear whether ever such an law g., e. exception requirement See, to the of notice or awareness. Sparks, Genner Eng. Rep. 6 Mod. It is stated in 928. Semayne’s Case, supra, English annotator’s note to a man that “if being legally arrested, escapeth officer, from the shelter taketh though house, may upon in his own the officer fresh suit break open having him, given doors in order to retake first due notice of admission, Eng. business and demanded and been refused.” ambiguous views Rep., at 196. The of other commentators are on g., Hawkins, e. point. See, (6th 1787), Pleas Crown ed. Warrant, 22 L. Mich. Rev.
rationale of exception such an is clear, and serves to underscore the consistency purpose general requirement of notice: Where such circumstances as an escape pursuit arresting hot officer no leave doubt fleeing felon is pres- aware officer’s purpose, ence and pausing at the threshold to make the ordinarily requisite announcement and demand would be superfluous act which law require.9 does not But exceptions permitted have heretofore unannounced *27 in entries the absence of such part awarenéss on the occupants possibly where the officers are justified —unless in the belief that someone within danger is immediate of bodily harm.
Two reasons rooted in the clearly Constitution compel recognize the courts refuse to exceptions to in other situa- 14, felony actually c. 8. Blackstone’s view was that “in ease of § committed, dangerous wounding,. whereby felony or a is like to may upon probable suspicion ensue ... arrest [a constable] felon; purpose (as upon and for justice’s that is authorized a war rant) "open doors, to break and even kill to the felon if he cannot be otherwise taken . . . .” 4 Commentaries 292. 9 Wilgus’ See Professor broken, comment: “Before doors are there necessity doing, authority must be a for pur so and notice of the pose given to make the must arrest be and a demand and refusal of made, already admission must be this is understood, unless or the peril Wilgus, Warrant, would be increased." Arrest Without a 22 541, 798, (Emphasis L. supplied.) Mich. Rev. 802 Cf. App. 394, 398-402, Accarino v. United D. C. F. 179 456, 2d 460-464. Compare statement, Lord Mansfield’s for rationale requirement of announcement and demand for admission: “The
ground this; consequences it is that otherwise the would be fatal: family within, exposed it would leave the for naked and to thieves therefore, says you and robbers. It is much better law, that opportunity, should for another violence, wait than do an act of may probably dangerous be consequences.” which attended with such Gansel, Cowp. 1, 6-7, Eng. Rep. Lee 938. showing
tions is within were when there that those The presence. or had made aware of the officers’ been exception is a any requiring showing first that not of such necessarily implies rejection a of the inviolable awareness failing The to presumption, of excuse innocence. knock where or announce the. officer’s mission the occu- pants presence oblivious his can be an almost are assumption suspect automatic the. within will resist that attempt peacefully, or will frustrate the officer’s to enter attempt will attempt or escape, destroy incriminating may possibly whatever he evidence assumptions pre- have. do Such' obvious violence to the sumption of is com- Indeed, innocence. the violence pounded by assumption, necessarily another involved, also suspect to whom officer first makes known hardly further need presence will violate the law. It every offense suspect guilty said not fact suspected, everyone he who is attempt escape fact guilty forcibly will resist arrest or destroy evidence.10 Burton, Rooke, Pul. J., Bos. & comment Ratcliffe Eng. Rep. 123, (1802), is relevant here: “What privilege permitted will be allowed to sheriffs’ if are officers *28 by violence, making effect their search without that demand which possibly complied consequently ren with, will be and violence be unnecessary!” requirement dered view of the of notice or This requirement parallel English in historic has its awareness give -authority purpose arresting an officer must notice of his and notice, In. the such unless one whom he about to arrest. absence of is person being already authority arrested knew the officer’s mission, justified resisting by might force, not be he was in charged injury witjh crime if the officer resulted. an additional Mackalley’s Case, origin appears The this doctrine 9 Co. of. George, Rex Rep. Eng. Rep. 828, 65b, 69a, 835. See also v. Potter, Can. Crim. Cases [1935] 2 D. L. R. 516 Cal. App. 2d (Ont. (B. C. Ct. Ct. 300 P. App.). Compare, e. App.); 2d Regina in v. Beaudette, noncompliance g., People showing of a absence is that The second reason presence the officers’ occupants of by of awareness “running” within would noises” of “loud purpose, conduct. ambiguous least, only to ordinarily, at amount, ambig have held contexts related Our decisions a belief form the basis cannot uous conduct of evidence escape or destruction officers that is. S. United States, 371 U. Wong being attempted. Sun v. at 311. States, supra, Miller v. United 483-484; practical considerations, these constitutional Beyond strongly against any militate- of law enforcement hazards cases First, of awareness. the requirement relaxation of in the investi- surely not novel identity of mistaken are very real possibility The gation of crime. of address of name may be misinformed to the
police material information. That or as to other suspect, a holding tight rein good reason for is itself possibility police entries approval of unannounced against judicial should not suf- Innocent citizens homes. private into upon attendant shock, fright embarrassment fer the Second, require- intrusion.11 police an unannounced the, known to have was excused because defendant was with 844§ suspected previous of a of three robberies been convicted and.was entering though fact, upon his hotel'room unannounced fourth — manager, key the officers found obtained from the of a means off, lights and unarmed. The bed, with the the defendant midnight. after occurred long aptly expressed importance was of this consideration Burton, 230, 127 by Heath, J., 3 Bos. & Pul. ago Ratcliffe (1802): Rep. 123, Eng. 126-127 reason, England, on never authorises which is founded “The law every outrageous breaking open door and lock in a acts as the such authority any under which declaration of the house without man’s dismay, and must tend to create fear and Such conduct it is done. peace by provoking resistance. doctrine would This breaches of the against great persons whom with mischief to be attended also, equally persons it must hold process issued, but to other since *29 ment of awareness also to minimize the hazards serves dangerous calling. expressly recognized the officers’ We in Miller supra, v. United com 313, n. pliance safeguard with the. federal notice also a statute “is for the for police might themselves who mistaken prowlers be shot down a fearful householder.” Indeed, English one of principal objectives requirement authority purpose announcement of protect from arresting being officers shot was.to trespassers, previous “. . . for if no demand how made, possible is it party a know what of the object for person breaking open right door ? may be He has aggression consider it as an on private property, resisting he will be Launock justified utmost.” Brown, Eng. B. & Ald. 592, Rep. compelling These considerations underlie the constitu- against recognition predi- tional barrier exceptions on knowledge or presence. cated officers’ awareness State and officers common obligation federal have the -respect upon this basic constitutional limitation police I reject courts, activities. the contention that in enforcing respect such part on the of all state or officers, federal, create serious obstacles to effective law enforce- ment. Federal officers operated years have five under good process upon escape,, party in cases of where the taken has refuge stranger. in the of a house Shall it be said that in such may open case the stranger’s officer break the outer door of a house declaring authority acts, making any without under which he demand of admittance? pleading No from the books has Semayne’s support cited case justification, been of this authority against direct it.” See also McDonald v. 460-461 (concurring opinion) “Many for Mr. Justice Jackson’s comment: city homeowners in this crime-beset doubtless are When a armed. strange man, plain clothes, prying up woman sees a her bedroom climbing in, impulse window and her natural would be to shoot.” *30 of impairment no discernible Miller rule with nar important obtain arrests and make effective ability to city true that state if it were Even cotics convictions. or less resourceful experienced generally less are police experience of (and the counterparts federal than their Cali case, under force involved very police adopted judicially exclusionary rule general fornia’s suggestion,13 refuting any such toward very far 1955, goes 220-221), 36.4 S. U. Elkins v. see against unlawful protections Amendment’s the Fourth depend expand or do not contract search seizure and resourcefulness experience relative ing upon the we officers. When law-enforcement groups of different Fourth of the rights because Mapp that, declared than those dignity of no lesser Amendment were in. Four Rights Bill absorbed liberties other . . longer permit can no . [them] “. . . we teenth, who, any police officer the whim of at be revocable suspend itself, chooses of law enforcement the name thought at 660—I S., . 367 U. enjoyment,” . . [their] of con very problems had laid rest the words we these so case present I fear dissonance stitutional soon revives.14 Safety Some Kamisar, Individual Liberties: See, g., Public e. Criminology Police “Theories,” L., J. Crim.
“Facts” Rev. (1962); 76 Harv. L. Rogge, Reyiew, Book 188-190 Science 1516, 1522-1523 Traynor’s Compare recent comment: Justice Supreme still confronts States Court the United “Nevertheless must estab- responsibility or later it special of its own. Sooner new pres- whatever local ground unreasonableness to counter rules of lish spoil spare that would might the evidence sures there restraining exclusionary responsibility exercise a Its thus to rule. heavy far- no mean task to formulate looms as a one. influence It unreasonable lend sighted standards of what constitutional Traynor, Mapp readily application.” themselves to nation-wide Fifty Large Duke L. J. 328. in the Ohio at
III. I my believing turn now to reasons for. the arrests petitioners illegal. My these were Brother Clark apparently recognizes prior that the element the Kers’ awareness presence officers’ was' essential, highly validity relevant,' least to the of the officers’ unannounced Ker apartment, says, into the for he eluding “Ker’s shortly furtive conduct them before that, might was ground'for belief he well have expecting police.” been supplied.) But (Emphasis *31 my the test under “fresh pursuit” exception the which Brother Clark apparently depends not, seeks to invoke upon conjecture mere course, “might whether within those expecting well have police, upon been” the but whether there occupants evidence shows that' the were in police fact aware that the were about to visit th.em. wholly That the Kers were pres- oblivious to the officers’ only possible is the inference on the ence uneontradicted facts; the “fresh pursuit” exception clearly is therefore unavailable. When the officers let in themselves with passkey, “proceeding quietly,” my the as Brother Clark says, George Ker was in sitting living room read- ing a newspaper, busy his wife was in the kitchen. The marijuana, moreover, was in full top view on the sink. convincing kitchen More evidence the complete unawareness of an imminent police visit can hardly imagined. be Indeéd, conjecture even the “might the Kers well been expecting police” have has no support the record. conjecture That is made tó rest entirely upon unexplained U-turn made Ker’s car when the officers lost him after the rendezvous at the surely oil fields. But the U-turn must disregarded wholly ambiguous conduct; there is no absolutely proof that the driver the Ker car knew that the were officers 311; supra, Miller United Cf. following it. at 483-484. supra, Wong Sun v. however, excep- chiefly, invokes Brother
My Clark when have officers allowing tion unannounced attempting within is to that someone reason believe for the minimal But the conditions destroy to evidence. in this case. present are not application exception of that Kers were the record, On uncontradicted but, again on presence, of the officers’ completely unaware absolutely no record, there activ- the uncontradicted was in the the officers ity apartment justify within the destroy evi- anyone attempting within was belief marijuana Plainly enough, dence. Kers left wholly were top full on of the sink because view My Brother were on their trail. police oblivious that the whatever of recognizes there is evidence Clark to find the and is forced activity apartment, thus exception requisite support for this element that, in their investi- testimony experience officers’ violations, had gation suspects of narcotics other narcotics responded police attempting announcements Clearly exception evidence. such basis destroy Amendment; the Fourth requirements fails to meet the *32 in police experience pursuing suspects if other narcotics a justified police home, an unannounced intrusion into the all. protection Fourth Amendment would afford no at great principles always, recognition exceptions of The creates, exceptions of the hazard course, that will If police experience rule. mere some devour the justi- attempted destroy offenders have contraband any entry case, and cures the fies unannounced of only absence of not awareness of total evidence an presence attempt the officers’ even of such but case, logical distinguish- I no for particular perceive basis ing police entries into homes to make unannounced any involving for crime
arrests evidence of a kind which police experience might quickly indicates or destroyed more, if jettisoned. Moreover, experience, such without completely excuses the failure of arresting officers before entry, any day at hour of the or night, either to announce at or purpose their the threshold ascertain that occupant already presence, knows their then there logical ground distinguishing likewise between stealthy in which entry manner this was case effected, the more violent manner-usually associated police breaking with totalitarian or down the door smashing the lock.15
My Brother Clark correctly states when iaw “is not state violative the Federal Constitution” may we defer to law in an gauging validity of state arrest under Fourth Amendment. Since Cali- problems by The certainly raised this are ease not novel in history very of law enforcement. One of the earliest cases in field, ago, strikingly decided more than three centuries facts involved similar to those of the instant case. case of Waterhouse v. Saltmarsh, Eng. Rep. 409, by Hob. arose out the service sheriff upon bankrupt. a several These execution bailies officers, having by entered the outer of the door' house means “ described; up chamber, plaintiff ‘ran to the where wife and his loekt, knocking little, telling were bed and the doors without they were, they came, what or open wherefore brake door took him"....”’ The sheriff was fined the substantial £200— sum proceeding for what the court later “the a collateral described unnecessary outrage arrest, signifying and terror of this and for not sheriff, might he opened was that the door have been without Eng. Hob., Compare . Rep., violence . . .” at 409. early involving problems, Evans, another case similar Park Hob. Rep. Eng. in which the Star Chamber held unlawful by entering effected force after the officers had knocked but identify authority purpose. failed The Star Chamber opening “the concluded that was door occasioned them craft, and violence, then used to the intended.” *33 fornia law of here called in question patently vio- Amendment, lates the Fourth cannot that law constitu- tionally provide affirming.these basis the for convictions. conflicting testimony pro-and This is a not case con the a requisite finding existence of the for basis for elements application exception. agree the the I we that should ordinarily be state fact-finder’s accept constrained Here, however, resolution of factual conflicts. such completely facts ob- are uncontradicted: the Kers were engaged presence livious of the officers were no indicating attempt- kind were activity any that ing destroy duty narcotics. Our then decide (cid:127) in general testimony- whether the officers’ —that narcotics, fore- experience suspects destroy evidence when warned constitu- presence officers’ —satisfies tional application exception. Manifestly test for of the satisfy we should hold such not testimony does judgment subjective constitutional test. The of the police constitutionally officers cannot substitute always necessarily objective what has considered a been inquiry,16 whether circumstances exist par- namely, police entry.17 allow an ticular case which unannounced 16Any concerning scope California doubt of the test which People Maddox, may 2d 2d have survived 46 Cal. P. People Hammond, must the later have been removed case of 854-855, 2d 2d Cal. P. 294: arrest, “When there is cause to make an and the facts reasonable arresting known officer before are not inconsistent to the l good part compliance with on his with the forma faith belief requirements of . . . section [844] excused, a failure to comply therewith invalidate the search and seizure made as an does ensuing incident arrest.” accepts judgment
17 I think it is'unfortunate Court appellate question on a crucial intermediate California court m,eans Supreme it is of California law —for certain that California, questions law, Court of the final arbiter of of California *34 64
We have no occasion many here to decide how of the situations which, by supervisory the exercise our power the conduct over of. federal ex- officers, we would clude aré also evidence, situations which would require the exclusion of from evidence state criminal proceedings under the principles constitutional extended to the States by Mapp. But where the effecting conduct an arrest so clearly transgresses rights those guaranteed by the Fourth Amendment as does brought the conduct which about the arrest of these surely we would re- petitioners, verse the judgment if this were a federal prosecution involving federal officers. Since our decision in Mapp has guarantees made the of the Fourteenth Amendment coextensive with those the Fourth we pronounce should precisely the same judgment upon conduct of these state officers.
would
willingness
have condoned the
Appeal
the District
Court
noncompliance
to excuse
with
California statute under the facts
of this case. For the view
Supreme
of the California
Court
on
scope
exception
844,
g., People
of the
see,
Martin,
under
e.
v.
45
§
755,
Cal. 2d
855; People
290
2d
Carswell,
P.
v.
602,
51
2d
335
Cal.
99; People Hammond,
P. 2d
v.
846,
54 Cal. 2d
An examination of the California decisions which have excused noncompliance with scope exceptions reveals the narrow of the § recognized heretofore part for the most cases which —confined response officers entered apparently to cries of victim in im danger, g., People minent Roberts, e. 374, v. 47 Cal. 2d 2dP. 721; or in first they door, they knocked at the or knew had been seen the door, actually and then heard or observed destruc very tion of evidence crime for which had come to arrest occupants, see, g., People Moore, e. App. v. 2d Cal. 969; People Steinberg, P. 2d v. App. 634; 148 Cal. 2d 307 P. 2d People Williams, App. 2d 774, Rptr. 44; People Cal. 1 Cal. Fisher, App. Rptr. Cal. 2d generally, Cal. 461. See for summary and discussion of involving grounds California cases various noncompliance 844, Fricke, with California Criminal Evidence § (5th 1960), 432-433; Comment, ed. Two Years With the Cahan Rule, 9 Stan. L. Rev. 528-529