132 october term, 1924. - library of congress

132 OCTOBER TERM, 1924.

Syllabus. 267 U. S.

question of fact under the proceedings which were in-stituted by execution and what followed. The statecourts have found it to exist and it is not for us toquestion their findings.

The judgment isAffirmed.

CARROLL ET AL. v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

THE WESTERN DISTRICT OF MICHIGAN.

No. 15. Argued December 4, 1923; restored to docket for reargu-ment January 28, 1924; reargued March 14, 1924.-Decided March2, 1925.

1. Th*& legislative history of § 6 of the act supplemental to theNational Prohibition Act, November 23, 1921, c. 134, 42 Stat. 223,which makes it a misdemeanor for any officer of the United Statesto search a private dwelling without a search warrant or to searchany other building or property without a search warrant, ma-liciously and without reasonable cause, shows clearly the intentof Congress to make a distinction as to the necessity for a searchoarat in the searching of private dwellings and in the searchingof automobiles or other road vehicles, in the enforcement of theProhibition Act. P. 144.

2. The Fourth Amendment denounces only such searches or seizuresas are unreasonable, and it is to be construed in the light of whatwas deemed an unreasonable" search and seizure when it wasadopted, and in a manner which will conserve public interests aswell as the interests and rights of individual citizens. P. 147.

3. Search without a warrant of an automobile, and seizure thereinof liquor subject to seizure and destruction under the ProhibitionAct, do not violate the Amendment, if made upon probable cause,i. e., upon a belief, reasonably arising out of circumstances knownto the officer, that the vehicle contains such contraband liquor.P. 149.

4. Various acts of Congress are cited'to show that, practically sincethe beginning of the Government, the Fourth Amendment'hasbeen construed as recognizing a .necessary difference between asearch for contraband. in a store, dwelling-house, or other struc-

CARROLL v. UNITED STATES. 133

132 Syllabus.

ture for the search of which a Warrant may readily be obtained,and a search of a ship, wagon, automobile, or other vehicle whichmay be quickly moved out of the locality or jurisdiction in which.the warrant must be sought. P. 150.

5. Section 26, Title II, of the National Prohibition Act, providesthat when an officer "shall discoler any person in the act" oftransporting intoxicating liquor in ahy automobile, or other ve-hicle, in violation of law, it shall be his duty to seize the liquorand thereupon to take possession of the vehicle and arrest theperson in-charge of it, and that, upon conviction of such person,the court shall order the liquor destroyed, and, except for goodcause shown, shall order a public sale, etc. of the other propertyseized. Held:

(a) That the primary purpose is the seizure and destruction of -thecontraband liquor, and the provisions for forfeiture of the vehicleand arrest of the transporter are merely incidental. 'P. 153.

(b) Hence the right to search an automobile for illicit liquor andto seize the liquor, if found, and thereupon to seize the vehiclealso and to arrest the offender, does not depend upon the right toarrest the offender in the first instance, and therefore it is notdetermined by the degree of his offence,-whether a misdemeanorunder § 29, Title II of the Act, because of being his first or secondoffence, or a felony because it is his third; and the rule allowingarrest without warrant for misdemeanor only when the offence iscommitted in the officer's presence, but for a felony when theofficer has reasonable cause to believe that the person arrested

.ha committed a felony, is not the test of the validity, of suchsearch and seizure. Pp. 155, 156.

(c) The seizure is legal if the officer, in stopping and searching thevehicle, has reasonable or probable cause for believing that contra-band liquor is being illegally transported in it. P. 155.

(d) The language of § 26,--when an officer shall "discover " anyperson in the act of transporting, etc.,--Ldoes not limit him towhat he learns of the contents of a passing automobile by the useof his senses kt the time. P. 158.

(e) The section thus construed is consistent with the Folirth Amend-ment. P. 159.

6. Probable cause held to exist where prohibition officers, while pa-trolling a highway much used in illegal trantportation of liquor,stopped and searched an automobile upon the faith of informationpreviously obtained by thenf that tho car and its occupants, iden-tified by the officets, were engaged in the illegal business of "boot-legging." P. 159.

OCTOBER TERM, 1924.

Statement of the Case. 267 U. S.

7. When contraband liquor, seized from an automobile and usedin the conviction of those in charge of the transportation, -wasshown at the trial to have been taken in a search justified byprobable cause, Held that the court's refusal to return the liquoron defendants' motion before trial, even if erroneous because prob-able cause was not then proven, was not a substantial -reason forreversing the conviction. P. 162.

8. The Court notices judicially that Grand Rapids is about 152 milesfrom Detroit, and that Detroit, and its neighborhood along theDetroit River, which is the international boundary, is one of themost active centers for introducing illegally into this country spir-ituous liquors for distribution into the interior. P. 160.

Affirmed.

This is a writ of error to the District Court underSection 238 of the Judicial Code. The plaintiffs in error,hereafter to be called the defendants, George Carroll andJohn Kiro, were indicted and convicted for transportingin an automobile intoxicating spirituous liqubr, to wit:68 quarts of so-called bonded whiskey and gin, in violationof the National Prohibition Act. The ground on whichthey assail the conviction is that the trial court admittedin evidence two of the 68 bottles, one of whiskey andone of gin, found by searching the automobile. It is con-tended that the search and seizure were in violation ofthe Fourth Amendment, and therefore that use of theliquor as evidence was not proper. Before the trial amotion was made by the defendants that all the liquorsMlz2ea be returned to the defendant Carroll, who ownedthe automobile. This motion was denied.

The search and seizure were made by Cronenwett,Scully and Thayer, federal prohibition agents, and onePeterson, a state officer, in December, 1921, as the carwas .going westward on the highway between Detroit andGrand Rapids at a point 16 miles outside of Grand Rap-ids. The facts leading to the search and seizure were asfollows: On September 29th, Cronenwett and Scully werein an apartment in Grand Rapids. Three men came tothat apartment, a man named Kruska and the two de-

CARROLL v. UNITED STATES.

132 Statement of the Case.

fendants, Carroll and Kiro. Cronenwett was introduced'to them as one Stafford, working in the Michigan ChairCompany in Grand Rapids, who wished to buy three casesof whiskey. The price was fixed at $130 a case. Thethree men said they had to go to the east end of GrandRapids to get the liquor and that they would be back inhalf or three-quarters of an hodr. They went away andin a short time Kruska came back and said they could notget it that night, that the man who had it was not in,but that they would deliver it the next day. They hadcome to the apartment in an automobile known as anOldsmobile Roadster, the number of which Cronenwettthen identified, as did Scully. The proposed vendors didnot return the next day and the evidence disclosed noexplanation of their failure to do so. One may surmisethat it was suspicion of the real character of the proposedpurchaser, whom Carroll subsequently called by his firstname when arrested in December following. Cronenwettand his subordinates were engaged in patrolling the roadleading from Detroit to Grand Rapids, looking for viola-tions of the Prohibition Act. This seems to have beentheir regular tour of duty. On the 6th of October, Car-roll and Kiro, going eastward from Grand Rapids in thesame Oldsmobile Roadster, passed Cronenwett and Scullysome distance out from Grand Rapids. Cronenwett calledto Scully, who was taking lunch, that the Carroll boyshad passed them going toward Detroit and sought withScully to catch up with them to see where they weregoing. The officers followed as far as East Lansing, halfway to Detroit, but there lost trace of them. On the 15thof December, some two months later, Scully and Cronen-wett, on their regular tour of duty, with Peterson, thestate officer, were going fro~m Grand Rapids to Ionia., onthe road to Detroit, when Kiro and Carroll met and passedthem in the same automobile, coming from the direction ofDetroit to Grand Rapids. The government agents turned

13 5

OCTOBER TERM, 1924.

Argument for Plaintiffs in Error. 267 U. S.

their car and followed the. defendants to a point somesixteen miles east of Grand Rapids, where. they stoppedthem and searched the car. They found behind the up-holstering of the seats, the filling of which had been re-moved,. 68 bottles. These had labels on them, part pur-porting to be certificates of English chemists that the con-tents were blended Scotch whiskeys, and the rest that thecontents were Gordon gin made in London. When anexpert witness was called to prove the contents, defend-ants admitted the nature of them to be whiskey and gin.When the defendants were arrested, Carroll said tb Cron-enwett, "Take- the liquor and. give us, olae more chanceand I will make it right with you," ad he ptdled out a

.roll of bills, of which one was for $10. Peterson and an-other took the -two defendants 'and the liquor and the carto Grand Rapids, .while Cronenwett, Thayer and Scullyremained on the road looking for other cars, of whosecoming they had information. The pfficers were not an-ticipating that the defendants would be coming throughon the highway at that particular time, but when theymet them there they believed they were carrying liquor;and hence the search, seizure and arrest.

Mr. Thomas E. Atkinson and'Mr: Clare J. IWl, forplaintiffs in error, submitted. Mr. James N. Lombardwas also on the brief.'

There was nothing about the appearance of the car' toindicate that it carried liquor. The liquor was only Toundafter a thorough search and destruction of, the cushion.Two of the officers testified that they had seen the cartwice before, but there was no evidence 'that it had evertransported liquor before. The officers had never pur-chased liquor from plaintiffs in error although they testi-

'At the former hearing the case was argued by Mr. Thomas E.Atkinson. Messrs. Clare J. Hall and James A. Lombard were alsoon the brief.

136'


132 Argument for Plaintifs in'Error.

fled that they had tried and had not been successful.They admit that they had no information that this carwas coming through at this particular time and that theywere merely patrolling the road.

When an arrest is made without a warrant, the burdenis on the officers to show legality of the arrest. At com-mon law a distinction was made between arrest withoutwarrant in the case of felony and in the case of misde-meanor. While an officer might arrest one upon reason-able grounds of suspicion that he had committed a felony,he could not arrest for a misdemeanor unless the offencewas committed in his presence. The true rule is thatunless -the offence is discoverable 'without a search, it isnot, in legal contemplation, committed in the presence ofthe officer. From their own admission the officers hadno ieason to believe that the plaintiffs in error were com-mitting a felony or a misdemeanor. The search must

'therefore have been based upon a mere capricious venture.No misdemeanor was committed in the officers' presenceand hence they could not legally arrest without a warrant.Kurtz v. Moffitt, 115 U. S. 487; John Bad Elk v. UnitedStates, 177 U. S. 529; Drennan v. People, 10 Mich. 169;Sarah Way's Case, 41 Mich. 299; State v. Lutz, 85 W. Va.330'; State v. Wills, 91 W. Va. 659; Snyder v. UnitedStates, 285 Fed. 1; Pickett v. State, 99 Ga. 12; Roberson v.State, 43 Fla. 156, 52 L. R. A. 751.

Not only does a misdemeanor have to be committedin the presence of the officer, but in addition, it must be abreach of the peace. State v. Lutz, supra.

No federal statute sets forth the circumstances underwhich an officer may arrest without a warrant. Under§ 28 of the National Prohibition Act, taken in conjunctionwith § 788 of the Rev. Stats., a prohibition agent wouldhave the same authority to arrest without a warrant, asa state -officer This offence was committed in the Stateof Michigan, consequently we look to the'law of that

OCTOBER TERM, 1924.


State. There appears to be no statute in Michigan uponthe subject. Sarah Way's Case, supra. The offence herewas not .a felony. Moreover there were no grounds forbelief that a felony had been committed. The factsshow that neither of the elements necessary, for anarrest without a warrant for a misdemeanor exists in thecause.

The search and seizure were in violation of the Consti-tution. We do not question the well established prin-ciple recognized by way of dictum in Weeks v. UnitedStates, 232 U. S. 383, that an officer may search a personlegally arrested to discover and seize the fruits or evidencesof the crime. But this principle has no application herefor two reasons, viz., first, the search preceded the arrestand, second, the arrest, being illegal, gave no more rightto search than if there had been no arrest at all. Pickettv. State, supra; Youman, v. State, 189 Ky.. 152; State v.Wills, supra; People v. Margelis, 217 Mich. 423; UnitedStates v. Myers, 287 Fed. 260.

There are a few examples of visitorial power of officialsto search. They are exceptions and are reasonable onlybecause of the peculiar circumstances under which theyare permitted. General executive or judicial warrants tosearch are void at common law, as seen by the WilkesCases, and are expressly forbidden by the Constitution.General warrants of authority to search granted by thelegislature would be even worse, because their naturewould necessarily be more sweeping than executive orjudicial warrants and hence more capable of abuse on thepart of numerous petty officials.

In two instances officers are granted visitorial powers.Customs officers are granted power by Congress to searchpersons and property for dutiable goods (Rev. Stats.§ 3059). This is a device necessary for the collection ofcustoms and may be said to be a right which the Govern-ment exercises over individuals in exchange for the privi-

138


132 Argument for Plaintiffs in Error.

lege of entering the territory of the United States. More-over, it is not readily capable of abuse, for the searchesare ordinarily made only at points of entry and under thesupervision of responsible superiors. It is true also thatby § 3061 persons and vehicles may be searched by cus-toms officers outside the customs house. This is for theobvious purpose of reaching dutiable goods which haveescaped the payment of duty by evasion. No case hasdetermined its constitutionality. It is extremely doubtfulif evidence thus obtained by customs officers could be law-fully used in a criminal prosecution. Moreover, customsofficers were limited in number. The power was nevergiven to internal revenue officers, who had, however, aright to inspect distillers etc. without a warrant (Rev.Stats. § 3177). Federal prohibition agents were notgranted the right of customs officers but of internal reve-nue officers only (41 Stat. 316). This indicates a clearlegislative intent to deny to prohibition agents the rightwithout a warrant to search persons and vehicles travelingon the highway.

Nor have prohibition agents the right to search allvehicles in order to discover violations under the pro-visions of § 26 of the National Prohibition Law, whichsays that when any officer "shall discover" a persop inthe act of transporting liquor, he shall seize the liquor andarrest the person in charge. State v. One Hudson Auto-mobile, 190 N. Y. Supp. 481. Reaching the same con-clusion is an article entitled: "A New Discovery," byGeorge L. Hunt, 9 A. B. A. Journal, 321.

The history of the Fourth Amendment has been ad-mirably set forth in Boyd v. United States, 116 U..S. 616.The Amendment mentions four things which are pro-tected, viz, persons, houses, papers and effects. Thedecisions of this Court, however, have largely been con-fined to cases in which the houses of accused persons havebeen searched without a warrant and papers of an evi-

OCTOBER TERM, 1924.


dential nature obtained as a result of the search. Butthe maxim that "a man's home is his castle" does notinclude the full scope of the Fourth Amendment. Itlikewise protects the persons, -and effects, wherever theymay~be, against unreasonable searches and seizures. Thisis illustrated by the recent case of Gouled v. UnitedStates, 255 U. S. 298, in which this Court held that aseizure by stealth in an office, without a search warrant,was in violation of the Fourth Amendment. The Courtattached no significance to the fact that papers, as distin-guished from other property, were taken. Moreover, inthe case of Amos v. United States, 255 U. S. 313, whiskyseized by federal officers in a search of accused's, homewithout a warrant, was held to be within the protectionof the Fourth and Fifth Amendments. The state courtshave held, in well considered cases, that a search of per-sonal property not contained in a house or building, with-out a search warrant, violates the section of the stateBill of Rights corresponding to the Fourth Amendment.People v. Margelis, 217 Mich. 423; People v. Foreman,218 Mich. 591; Blacksburg v. Beam, 104 S. C. 146; Till-man v. State, 81 Fa. 558; Pckett v. State, 99 Ga. 12;Hoyer v. State (Wise.) , 193 N. W. 89; Butler v. State,129 Miss. 778; State v. Wills, 91 W. Va. 659.

Well considered cases indicate that an officer has noright to search a vehicle traveling on te public highway.Butler v,. State, supra; Taylor v. State, 129 Miss. 815;State v. Pluth (Minn.),, 195 N. W. 789; Hoyer v. Statesupra; State v. One Hudson Automobile, supra; Staite v.Gibbons, 118 Wash. "171.

Citation of similar cases might be multiplied. -Thecases illustrate the principle that a seizure without asearch warrant is unreasonable when an arrest would notbe justified with'out a warrant. The proposition that theevidence which is found justifica the arrest or the seizureis a specious argument and has no support except in one


132 Argument for Plaintiffs in Error.

or two ill-considered district court cases. To use a homelyphrase, it is an attempt to pull one's self up by his ownbootstraps.

The mere fact that general searches of vehicles mayhelp to enforce the Eighteenth Amendment does not makethose searches reasonable.

Conceivably it might b. permissible for an officer tosearch a vehicle before an arrest in cases where the arrestof the occupahts might be justified without a knowledgeof the facts learned througlT the search. This wouldbe placing the cart before the horse, however, and weurge that this Court disalp'rove of such a.- practice.If the officer clearly knows facts sufficient to justifyan arrest, he should make the arrest first- and the searchafterward.

If the" principle of finding justifying the search be avalid one, it means simply that an officer may stop andsearch every vehicle or foot passenger othe highwayand if liquor is discovered the search will be legal.Such practice would, in the words-of Mr. Justice Bradleyin Boyd v. Uniited States, "suit the purpose of :despoticpower, but it cannot abide the puro atmosphere of po-litical liberty and personal freedom." -

Not only this, but according to the argument, searchesof homes without search warrants would be legalized incase liquor were found. This is exactly contrary to the,Amos Case decided by this Court. United States - v.Slusser, 270 Fed. 818. -

If the words " shall discover" in § 26 of the ProhibitionLaw refer to a discovery by lawful means, the statute addsnothing to the commofi law power of the enforcing officers.If, on the other hand, it be so interpreted as to give the-officers the right to sear*l any and all vehicles- passing onthe highway, it is cleafy in violation of the FourthAmendment. .If it be so tonstrued, it is a general warrantathousand times more sweeping than'those issued against



Wilkes and his associates by Halifax. In the warrantsissued by Lord Halifax, the parties were sometimes ex-pressly mentioned by name and always designated as thepublishers of certain matter. Entick v. Carrington, 19How. St. Tr. 1029; Leach v. Money, 19 How. St. Tr. 1001;Wilkes v. Wood, 19 How. St. Tr. 1153.

The word "discover" may mean "finding out," "ascer-taining" or "detecting." It is submitted that this is itsnatural meaning, and not to "examine," "explore," orsome other mere action which may or may not result indisclosure. If the latter definition is accepted we have anact 6f Congress which is in effect a legislative general war-rant addressed to all officers to search all vehicles.

Where property or evidence has been obtained throughunconstitutional search and seizure, failure to return thesame and to suppress the evidence learned thereby con-stitutes reversible error. Boyd v. United States, 116 U.S. 616; Weeks v. United States, 232 U. S. 383; Silver-thorne Lumber Co. v. United States, 251 U. S. 385;Gouled v. United States, 255 U. S. 298: Amos v. UnitedStates, 255 U. S. 313.

In addition, the doctrine of the Boyd and Weeks Caseshas found support in many well considered recent cases inthe state courts under the provisions of the Bills of Rightsin the state constitutions. The following cases in theCircuit Courts of Appeals hold that, in prosecutions forviolation of the National Prohibition Act, evidence ofliquor obtained by unlawful searches and seizures is in-admissible: Snyder v. United States, 285 Fed. 1; Murphyv. United States, 285 Fed. 801. The Circuit Court ofAppeals for the second circuit has announced the samedoctrine with reference to the possession of narcotics inviolation of national law. Ganci v. United States, 287Fed. 60.

The plaintiffs in error are entitled to a reversal of theconviction and return of the car and liquor seized.


132 Opinion of the Court.

Mr. Solicitor General Beck, with whom Mr. Geo. RossHull, Special Assistant to the Attorney General, was onthe brief, for the United States.2

Mn. CHIEF JUSTIcE T~r, after stating the case asabove, delivered the opinion of the Court.

The constitutional and statutory provisions involvedin this case include the Fourth Amendment and the Na-tional Prohibition Act.

The Fourth Amendment is in part as follows:"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searchesand seizures, shall not be violated, and no Warrants shallissue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to besearched, and the person, or things to be seized."

Section 25, Title II, of the National Prohibition Act,c. 85, 41 Stat. 305, 315, passed to enforce the EighteenthAmendment, makes it unlawful to have or possess anyliquor intended for use in violating the Act, or which hasbeen so used, and provides that no property rights shallexist in such liquor. A search warrant may issue andsuch liquor, with the containers thereof, may be seizedunder the warrant and be ultimately destroyed. Thesection further provides:

"No search warrant shall issue to search any privatedwelling occupied as stich unless it is being used for theunlawful sale of intoxicating liquor, or unless it is in partused for some business purpose such as a store, shop,saloon, restaurant, hotel, or boarding house. The term'private dwelling' shall be construed to include the roomor rooms used and occupied not transiently but solely as

2At the former hearing the case was argued by Mr. Assistant At-torney General Grim. Mr. Solicitor General Beck and Mr. HarrySusman were also on the brief.


Opinion of the Court. 267 U. S.

a residence in an apartment house, hotel, or boardinghouse."

Section 26, Title II, under which the seizure herein wasmade, provides in part as follows:

"When the commissioner, his assistants, inspectors, orany officer of the law shall discover any person in the actof transporting in violation of the law, intoxicating liquorsin any wagon, buggy, automobile, water or air craft, orother vehicle, if-shall be his duty to seize any and allintoxicating liquors found therein being transported con-trary to law. Whenever intoxicating liquors transportedor possessed illegally shall be seized by an officer he shalltake possession of the vehicle and team or automobile,boat, air or water craft, or any other conveyance, andshall arrest any person in charge thereof."

The section then provides that the court upon convic-tion of the person so arrested shall order the liquor de-stroyed, and except for good cause shown shall order asale by public auction of the other property seized, andthat the proceeds shall be paid into the Treasury of theUnited States.

By Section 6 of an Act supplemental to the NationalProhibition Act, c. 134; 42 Stat. 222, 223, it is providedthat if any officer or agent or employee of the UnitedStates engaged in the enforcement of the Prohibition Actor this Amendment, "shall search any pivate dwelling,"as defined in that Act, "without a warrant directing suchsearch," or "shall without a search warrant maliciouslyand without reasonable cause search any other buildingor property," he shall be guilty of a misdemeanor andsubject to fine or imprisonment or both.

In the passage of the supplemental Act through theSenate, Amendment No. 32, known as the Stailey Amend-ment, was adopted, the relevant part of which was asfollows.

"Section 6. That any officer, agent or employee of theUnited States engaged in the enforcement of this Act or



the National Prohibition Act, or any other law of theUnited States, who shall search or attempt to search theproperty or premises of any person without previouslysecuring a search warrant, as provided by law, shallbe guilty of a misdemeanor and upon conviction thereofshall be fined not to exceed'$1000, or imprisoned not toexceed one year, or both so fined and imprisoned in thediscretion of the Court."

This Amendment was objected to in the Rouse, and theJudiciary Committee, to whom it was referred, reportedto the House of Representatives the following as a sub-stitute.

"Sec. 6. That no officer, agent or employee of theUnited States, while engaged in the enforcement of thisAct, the National Prohibition Act, or any law in refer-ence to the manufacture or taxation of, or traffic in, in-toxicating liquor, shall search any private dwelling with-out a warrant directing such search, and no such warrantshall issue unless there is reason to believe such dwellingis used as a place in whichliquor is manufactured for saleor sold. The term 'private dwelling' shall be construedto include the room or rooms occupied not triansiently,but solely as a residence in an apartment house, hotel, orboarding house. Any violation of any provision of thisparagraph shall be punished by a fine of not to exceed$1000 or imprisonment not to exceed one year, or both'such fine- and imprisonment, in the discretion of thecourt."

In its report the Committee spoke in part as follows:"It appeared to the committee that the effect of the

Senate amendment No. 32, if agreed to by the House,would greatly cripple the enforcement of the nationalprohibition act and would otherwise seriously interferewith the Government in the enforcement of many otherlaws, as its scope is not limited to the prohibition law

OCTOBER TERM, 1924.


but applies equally to all laws where prompt action isnecessary. There are on the statute books of the UnitedStates a number of laws authorizing search without asearch warrant. Under the common law and agreeablyto the Constitution search may in many cases be legallymaqde without a warrant! The Constitution does notforbid search, as some parties contend, but it does forbidunreasonable search. This provision in regard to searchis as a rule contained in the various State constitutions,but notwithstanding that fact search without a warrantis permitted in many cases, and especially is that true inthe enforcement of liquor legislation.

"The Senate amendment prohibits all search orattempt to search any property or premises without asearch warrant. The effect of that would necessarily beto prohibit all search, as no search can take place if itis not on some property or premises.

"Not only does this amendment prohibit search of anylands but it prohibits the searclh of all property. It willprevent the search of the common bootlegger and hisstock in trade though caught and arrested in the act ofviolating the law. But what is perhaps more serious, itwill make it imp~sible to stop the rum running auto-mobiles engaged infike illegal traffic. It would take fromthe officers the power that they-absolutely must have tobe of any service, for if they can not search for liquorwithout a warrant they might as well be discharged.It is impossible to get a warrant to stop an automobile.Before a warrant could be secured the automobile wouldbe beyond the reach of the officer with its load of illegalliquor disposed of."-

The conference report resulted, so far as the differencebetween the two Houses was concerned, in providing forthe punishment of any officer, agent or employee of theGovernment who searches a "private dwelling" withouta warrant, and for the. punishment of any such officer,

146



etc., who searches any "other building or property"where, and only where, he makes the search without awarrant "maliciously and without probable cause." Inother words, it left the way open for searching an auto-mobile, or vehicle of transportation, without a warrant,if the search was not malicious or without probable cause.

The intent of Congress to make a distinction betweenthe necessity for a search warrant in the searching ofprivate dwellings 'and in that of automobiles and otherroad vehicles is the enforcement of the Prohibition Actis thus clearly established by the legislative history ofthe Stanley Amendment. Is such a distinction consistentwith the Fourth Amendment? We think that it is. TheFourth Amendment does not denounce all searches orseizures, but only such as are unreasonable.

The leading case on the subject of search and seizureis Boyd v. United States, 116 U. S. 616. An Act of Con-gress of June 22, 1874, authorized a court of the UnitedStates, in revenue cases, on motion of the governmentattorney, to require the ,defendant to produce in courthis private books, invoices and'papers on pain in case ofrefusal of having the allegations of the attorney in hismotion taken as confessed. This was held to, be uncon-stitutional and void as applied to suits for penalties orto establish a forfeiture of goods, on the ground that underthe Fourth Amendment the compulsory production ofinvoices to furnish evidence for forfeiture of goods con-stituted an unreasonable search even where made upona search warrant, and that it was also a violation of theFifth Amendment, in that it compelled the defendantin a criminal case to produce evidence against himselfor be in the attitude of confessing his guilt.

In Weeks v. United States, 232 U. S. 383, it was heldthat a court in a criminal -prosecution could not retainletters of the accused seized in his house, in his absenceand without his authority, by a United States marshal

OCTOBER TERM, 1924.


holding no warrant for his arrest and none for the searchof his premises, to be used as evidence against him, theaccused having made timely application to the court foran order for the return of the letters.

In Silverthorne Lumber Company v. United States, 251U. S. 385, a writ of error was brought to reverse a judg-ment of contempt of the District Court, fining the com-pany and imprisoning one Silverthorne, its president,until he should purge himself of contempt in not pro-ducing books and documents of the company before thegrand jury to prove violation of the statutes of the UnitedStates by the company and Silverthorne. Silverthornehad been arrested and while under arrest the marshal hadgone to the office of the company without a warrant andmade a clean sweep of all books, papers and documentsfound there and had taken copies and photographs of thepapers. The District Court ordered the return of theoriginals, but impounded the photographs and copies.This was held to be an unreasonable search of the prop-erty and possessions of the corporation and a violation ofthe Fourth Amendment and the judgment for contemptwas reversed.

In Gouled v. United States, 255 U. S. 298, the obtainingthrough stealth by a representative of the Government,from the office of one suspected of defrauding the Gov-ernment, of a paper which had no pecuniary value in itselfbut was only to be used as evidence against its owner, washeld to be a violation of the Fourth Amendment. It wasfurther held that when the paper was offered in evidenceand duly objected to it must be ruled inadmissible becauseobtained through an unreasonable search and seizure, andalso in violation of the Fifth Amendment because workingcompulsory incrimination.

In Amos v. United States, 255 U. S. 313, it was heldthat where concealed liquor was found by governmentofficers without. a search warrant in the home of the de-


132 Opinion of the Court.,

fendant, in his absence, and after a demand made uponhis wife, it was inadmissible as evidence against the de-fendant, because acquired by an unreasonable seizure.

In none of the cases cited is there any ruling as to thevalidity under the Fourth Amendment of a seizure with-out a warrant of contraband goods in the course of trans-portation and subject to forfeiture or destruction.

On reason and authority the true rule is that if thesearch and seizure without a warrant are made upon prob-able cause, that is, upon a belief, reasonably arising out ofcircumstances known to the seizing officer, that an auto-mobile or other vehicle contains that which by law issubject to seizure and destruction, the search and seizureare valid. The Fourth Amendment is to be construed inthe light of what was deemed an unreasonable search andseizure when it 'was adopted, and in a manner which willconserve public interests as well as the interests and rightsof individual citizens.

In Boyd v. United States, 116 U. S. 616, as alreadysaid, the decision -did not turn on whether a reasonablesearch might be made without a warrant; but for thepurpose of showing the principle on which the FourthAmendment proceeds, and to avoid any misapprehensionof what was decided, the Court, speaking through Mr.Justice Bradley, used language which is of particular sig-nificance and applicability here. It was there said (page623):

"The search for and seizure of stolen or forfeited goods,or goods liable to duties and concealed to avoid the. pay-ment thereof, are totally different things from a searchfor and *seizure of a man's private books and papers forthe purpose of obtaining information therein contained, orof using them as evidence against him. The two thingsdiffer toto coelo. In the one case, the government is enti-tled to the possession of the property; in theother it isnot. The seizure of stolen goods is authorized by the

'149

OCTOBER TE RM, 1924.


common law; and.the seizure of goods forfeited for abreach of the revenue laws, or concealed to avoid theduties payable on them, has been authorized by Englishstatutes for at least two centuries past; and the likeseizures have been authorized by our own revenue actsfrom the commencement of the government. The firststatute passed by Congress to regulate the collection ofduties, the act of July 31, 1789, 1 Stat. 29, 43, containsprovisions to this effect. As this act was passed by thesame Congress which proposed for adoption the originalamendments to the Constitution, it is clear that the mem-bers of that body did not regard searches and seizures ofthis kind as 'unreasonable,' and they are not embracedwithin the prohibition of the amendment. So, also, thesupervision authorized to be exercised by officers of therevenue over the manufacture or custody of excisablearticles, and the entries thereof in books required by lawto be kept for their inspection, are necessarily excepted-out of the category of unreasonable searches and seizures.So, also, the laws which provide for the search aridseizure of articles and things which it is .unlawful for aperson to have in his possession for the purpose of issueor disposition, such as counterfeit coin. lottery tickets,implements of gambling, &c., are not within this category.Commonwealth -v. Dana, 2 Met. (Mass.)-329. Manyother things of this character might be enumerated."

It is noteworthy that the twenty-fourth section of theAct of 1789 to which the Court there refers provides:

"That every collector, naval officer and surveyor, orother person speci-.ly appointed by either of them forthat purpose, shall have full power and authority, to enterany ship or vessel, in which they shall have reason to sus-pect any goods, wares or merchandise subject to duty shallbe concealed; and therein to search for, seize, and secureany such goods, wares or merchandise; and if they shallhave cause to suspect a concealment thereof, in any

150


132 Opinion of the Couit.

pa ticular dwelling-house, store, building, or other place,they or either of them shall, upon application on oath or-affirmation to any justice of the peace, be entitled to awarrant to enter such house, store, or other place (in theday time only) and there to search for such goods, and ifany shall be found, to seize and secure the same for trial;and all such goods, wares, and merchandise, on which theduties shall not have been paid or secured,. shall beforfeited."

Like provisions were contained in the Act of August 4,1790, c. 35, Sections 48-51, 1 Stat. 145, 170; in Section 27of the Act of February 18, 1793, c. 8, 1 Stat. 305, 315, andin Sections 68-71 of the Act of March 2, 1799, c. 22, 1Stat. 627, 677, 678.

Thus contemporaneously with the adoption of theFourth Amendment we find in the first Congress, and inthe following Second and Fourth Congresses, a differencemade as to the necessity for a search warrant betweengoods subject to forfeiture, when concealed in a dwellinghouse or similar place, and like goods in course of trans-portation and concealed in a movable vessel where theyreadily could be put out of reach of a search warrant.Compare Hester v. United States, 265 U. $. 57.

Again, by the. second section of the Act of March 3,1815, 3 Stat. 231, 232, it was made lawful for customsofficers not only to board and search vessels within theirown and adjoining districts, but also to stop, search andexamine any vehicle, beast or person on which or whomthey should suspect there was merchandise which wassubject to duty or had been introduced into the UnitedStates in any manner contrary to law, whether by theperson in charge of the vehicle or beast or otherwise, andif they should find any goods, wares or merchandisethereon, which they had probable cause to believe hadbeen so unlawfully brought into the country, to seize andsecure the same, and the vehicle or beast as well, for trial


Opinion of the Court. 267 U.S.

and forfeiture... This Act was renewed April 27, 1816,-3 Stat. 315, for a year and expired. The Act of February28, 1865, revived Section 2 of the Act of 1815, above de-scribed, e. 67, 13 Stat. 441. The substance of this sectionwas reenacted in the third section of the Act of july 18,1866, c. 201, 14 Stat. 178, and was thereafter embodiedin the Revised Statutes as Section 3061. Neither Section3061 nor any of its earlier counterparts has ever been,attacked as unconstitutional. Indeed that section wasreferred to and treated as operative by this Court inCotzhausen v. Nazro, 107 U. S. 215, 219. See also UnitedStates v. One Black Horse, 129 Fed. 167.

Again by Section 2140 of the Revised Statutes any In-dian agent, sub-agent or commander of a militarj post inthe Indian Country, having reason to suspect or beinginformed that any white person or Indian is about tointroduce, or has introduced, any spirituous liquor or wineinto the Indian Country, in violation of law, may causethe boats, storeS, packages, wagons, sleds and places ofdeposit of such person to be searched, and if any liquor isfound therein, then it, together with the vehicles, shallbe seized and proceeded against by libel in the propercourt and forfeited. Section 2140 was the outgrowth ofthe Act of May 6, 1822, c. 58, 3 Stat. 682, authorizingIndian agents to cause the goods of traders in the IndianCountry to be searched upon suspicion or information thatardent spirits were being introduced into the Indian Coun-try, to be seized and forfeited if found; and of the Actof June 30, 1834, Section 20, c. 161, 4 Stat. 729, 732,enabling an Indian agent having reason to suspect anyperson of having introduced or being about to introduceliquors into the Indian Country to cause the boats, stores-or places of deposit of such person to be searched and theliquor found forfeited. This Court recognized the statuteof 1822 as justifying such a search and seizure in Ameri-can Fur Co. v. United States, 2 Pet. 358. By the Indian



Appropriation Act of March 2, 1917, c. 146, .39 Stat. 969,970, automobiles used in introducing or attempting tointroduce intoxicants into the Indian Territory may beseized, libeled and forfeited as provided in the RevisedStatutes, Section 2140.

And again, in Alaska, by Section 174 of the Act ofMarch 3, 1899, c. 429, 30 Stat.- 1253, 1280, it is providedthat collectors and deputy collectors, or any person au-thorized by them in writing, shall be given power to arrestpersons and seize vessels and merchandise in Alaska liableto fine, penalties or forfeiture under the Act and to keepand deliver the same; and the Attorney General, in con-struing the Act, advised the Government: "If your agentsreasonably suspect that a violation of law has occurred,in my opinion they have power to search any vessel withinthe 3-mile limit according to the practice of customsofficers when acting under Section 3059 of the RevisedStatutes, and to seize such vessels." 26 Opinions Attor-neys General 243.

We have made a somewhat extended reference to thesestatutes to show that the guaranty of freedom from un-reasonable searches and seizures by the Fourth Amend-ment has been construed, practically since the beginningof the Government, as recognizing a necessary differencebetween a search of a store, dwelling house or other struc-ture in respect of which a proper official'warrant readilymay be obtained, and a search of a ship, motor boat,wagon or automobile, for contraband goods, where it isnot prapticable to secure a warrant because the vehiclecan be quickly moved out of the locality or jurisdictionin which the warrant must be sought.

Having thus established that contraband goods con-cealed and illegally transported in an automobile or othervehicle may be searched for without a warrant, we comenow to consider under what circumstances such searchmay be made. It would be intolerable and unreasonable

153



if a prohibition agent were authorized to stop every auto-mobile on the chance of finding liquor and thus subjectall persons lawfully using the highways to the incon-venience and indignity of such a search. Travellers maybe so stopped in crossing an international boundary be-cause of national self protection reasonably requiring oneentering the country to identify himself as entitled tocome in, and his belongings as effebts which may be law-fully brought in. But those lawfully within the country,entitled to use the public highways, have a right to freepassage without interruption or search unless there isknown to a competent official authorized'to search, prob-able cause for believing that their vehicles are carryingcontraband or illegal merchandise. " Section 26, Title II,of the National Prohibition Act, like the second sectionof *the Act of 1789, for the searching of vessels, like theprovisions of the Act of 1815, and Section 3061, RevisedStatutes, for searching vehicles for smuggled goods, andlike the Act of 1822, and that of 1834 and Section 2140,R. S., and the Act of 1917 for the search of vehicles andautomobiles for liquor smuggled into the Indian Country,was enacted primarily to -accomplish the seizure and de-struiction of contraband goods; secondly, the automobilewas to be forfeited; and thirdly, the driver was to bearrested. Under Section 29, Title II, of the Act the lattermight be punished by not more than $500 fine for thefirst offense, not more than $1,000 fine or 90 days' im-prisonment for the second offense, and by a fine of $500or more and by not more than 2 years' imprisonment forthe third offense. Thus he is to be arrested for a misde-meanor for his first and second offenses and for a felonyif he offends the third time. The main purpose of theAct obviously was to deal with the liquor and its trans-portation and to destroy it. The mere manufacture ofliquor can. do little to defeat the policy of the EighteenthAmendment and the Prohibition Act, unless the for-



bidden product can be distributed for illegal sale and use.Section 26 was intended to reach and destroy the for-bidden liquor in transportation and the provisions for'forfeiture of the vehicle and the arrest of the trans-porter were incidental. The rule for determining whatmay be required- before a seizure may be- made by a com-petent seizing official is not to be determined by thecharacter of the penalty to which the transporter may besubjected. Under Section 28, Title II, of the ProhibitionAct the Commissioner of Internal Revenue, his assistants,agents 'and inspectors are to have the power and pro-tection in the enforcement of the Act conferred by theexisting laws relating to the manufacture or sale of in-toxicating liquors. Officers who seize under Section 26of the Prohibition Act are therefore protected by Section970 of the Revised Statutes, providing that:

"When, in any prosecution commenced on account ofthe seizure of any vessel, goods, wares, or merchandise,made by any collector or other officer, under any Act ofCongress authorizing such seizure, judgment is renderedfor the claimant, but it appears to the court that therewas reasonable cause of seizure, the court* shall cause aproper certificate thereof to be entered, and the claimantshall not, in such case, be entitled to costs, nor shall theperson who made the seizure, nor the prosecutor, be liableto suit or judgment on account of such suit or prosecu-tion: Provided, That the vessel, goods, wares, or mer-chandise be, after judgment, forthwith returned to suchclaimant or his agent."

It follows from this that if an officer seizes an auto-mobile or the liquor in it without a warrant and the factsas subsequently developed do not justify a judgment ofcondemnation and forfeiture, the officer may escape costsor a suit for damages by a showing that he had reasonableor probable cause for the seizure. Stacey v. Emery, 97U. S. 642. The measure of legality of such a seizure is,

OCTOBER TERM, 1924.


therefore, that the seizing officer shall have reasonableor probable cause for believing that the automobile whichhe stops and seizes has contraband liquor therein which isbeing illegally transported.

We here find the line of distinction between legal andillegal seizures of liquor in transport in vehicles. It iscertainly a reasonable distinction. It gives the owner ofan automobile or other vehicle seized under Section 26,in absence of probable cause, a right to have restored tohim the automobile, it protects him under the Weeksand Amos cases from use of the liquor as evidence againsthim, and it subjects the officer making the seizures todamages. On the other hand, in a case showing probablecause, the Government and its officials are given theopportunity which they should have, to make the in-vestigation necessary to trace reasonably suspected con-traband goods and to seize them.

Such a rule fulfills the guaranty of the Fourth Amend-ment. In cases where the securing of a warrant is rea-sonably practicable, it must be used, and when properlysupported by affidavit and issued after judicial approvalprotects the seizing officer against a suit for damages. Incases where seizure is impossible except without warrant,the seizing officer acts unlawfully and at his peril unlesshe can show the court probable cause. United States v.Kaplan, 286 Fed. 963, 972.But we are pressed with the argument that if the search

of the automoile discloses the presence of liquor and leadsunder the statute to the arrest of the person in charge ofthe automobile, the right of seizure should.be limited bythe -common law rule as to the circumstances justifying anarrest without warrant for a misdemeanor. The usualrule is that a police officer may arrest without warrant onebelieved by, the officer upon reasonable cause to havebeen guilty of a felony, afid that he may only arrest with-out a warrant on guilty of a misdemeanor if committed



in his presence. Kurtz v. Moffitt, 115 U. S. 487; Elk v.United States, 177 U. S. 529. The rule is sometimes ex-pressed as follows:

"In cases of misdemeanor, a peace officer like a privateperson has at common law no power of arresting withouta warrant except when a breach of the peace has beencommitted in his presence or there is reasonable groundfor supposing that a breach of peace is about to be com-mitted or renewed in his presence." Halsbury's Laws ofEngland, Vol. 9, part III, 612.

The reason for arrest fbr misdemeanors without warrantat common law was promptly to suppress breaches of thepeace, 1 Stephen, History of Criminal Law, 193, while thereason for arrest without warrant on a reliable report ofa felony was because the public safety and the due appre-hension of criminals charged with heinous offenses re-quired that such arrests should be made at once with6litwarrant. Rohan v. Sawin, 5 Cush. -281. The argumentfor defendants is that as the misdemeanor to justify arrestwithout warrant must be committed in the presence of thepolice officer, the offense is not committed in his presenceunless he can by his senses detect that the liquor is beingtransported, no matter how reliable his previous informa-tion by which he can identify the automobile as loadedwith it. Elrod v. Moss, 278 Fed. 123; Hughes v. State,145 Tenn. 544.

So it is that under the rule contendpd for by defendantsthe liquor if carried by one who has been already twiceconvicted of the same offense may be seized on informa-tion other than the senses, while if he has been only onceconvicted it may not be seized unless the presence of theliquor is detected by the senses .as the automobile con-cealing it rushes by. This is .certainly a very unsatis-factory line of difference when the main object -of thesection is to forfeit And suppress the liquor, the arrest ofthe individual being only incidental as shown by the, light-

OCTOBER TERM, 1924.


ness of the penalty. See Commonwealth v. Street, 3 Pa.Dist. & Co. Reports, 783. In England at the common lawthe difference in punishment between felonies and mis-demeanors was very great. Under our present federalstatutes, it is much less important and Congress may ex-ercise a relatively wide discretion in classing particularoffenses as felonies or misdemeanors. As the main pur-pose of Section 26 was seizure and forfeiture, it is not somuch the owner as the property that offends. Agnew v.Haymes, 141 Fed. 631, 641. The language of the sectionprovides for seizure when the officer of the law. " dis-covers" any one in the act of transporting the liquor byautomobile or other vehicle. Certainly it is a very nar-row and technical construction of this word which wouldlimit it to what the officer sees, hears or smells as theautomobile rolls by and exclude therefrom, when heidentifies the car, the convincing information that he maypreviously have received as to the use being made of it.

We do not think such a nice distinction is applicable inthe present case. When a man is legally arrested for anoffense, whatever is found upon his person or in his con-

trol which it is unlawful for him to have and which maybe used to prove the offense may be seized and held asevidence in the prosecution. Weeks v. United States,232 U. S. 383, 392; Dillon v. O'Brien and Davis, 16 Cox.C. C. 245; Getchell v. Page, 103 Me. 387; Kneeland v.

-Connally, 70 Ga. 424;- 1 Bishop, Criminal Procedure, Sec.211; 1 Wharton, Criminal Procedure (10th edition), Sec.:.97. The argument of defendants is based on the theorythat the seizure in this case can. only be thus jistified.If their theory were sound; their conclfion would be.The validity of the seizure then. would turn wholly on thevalidity of the arrest without a seizure. But the theoryis unsound. The right to search and the validity of theseizure are not dependent on the right to arrest. Theyare. dependent on.the reasonable cause the seizing officer

CARROLL v. UNITED STATES.. .159

- 132 Opinion of the 'Court.

has for belief that the-contents of the automobile offendagainst the law. The-seizure in such a proceeding comesbefore the arrest as Section 26 indicates. It is true thatSection 26, Title II, provides for immediate proceedingsagainst the pers6n' arrested and that upon conviction theliquor is to be destroyed and the automobile or othervehicle is to be sold, with the saving of the interest of a,lienor who does not know of its unlawful use; but it isevident that if the person arrested is ignorant of the con-tents of the vehicle, or if he escapes, proceedings can behad against the liquor for destruction or other disposition'under Section 25 of the same title. The character of the-offense for which, after the contraband liquor is foundand seized, the driver can be prosecuted does not affectthe validity of the .seizure.

This conclusion is in keeping with the requirements ofthe Fourth Amendment and the principles of seafch andseizure of contraband forfeitable property; and it is a wiseone because it leaves the rule one which is easily appliedand understood and is uniform. Houck v. State, 106Ohio St. 195, accords with this conclusion. Ash v. UnitedStates, 299 Fed. 277 and Milam v. United States, 296 Fed.629, decisions by the Circuit Court of Appeals for thefourth circuit, take the sama view. The Ash case is verysimilar in its facts to the case at bar and both were bythe same court which decided Snyder v. United States,285 Fed. 1, cited for the defendants. See also Park v.United States (1st C. C. A.) 294 Fed. 776, 783, and Lam-bert v United States, (9th C. C. A.) 282 Fed. 413.

Finally, was there probable cause, In The Apollon,9 Wheat. 362, the question was whether the seizure of aFrench vessel at a particular place was upon probablecause that she was there for the purpose of smuggling.In this discusdion Mr. Justice Story, who delivered thejudgment of the Court, said (page 374):

"It has been very justly observed at the bar, that theCourt is bound to -a k -notice of public facts and ge6-

OCTOBER TERM, 1924.


graphical positions; and that this remote part of thecountry has been infested, at different periods, by smug-glers, is a matter of general notoriety, and may be gath-ered from the public documents -of the government."

We know in this way that Grand Rapids is about 152miles from Detroit and that Detroit and its neighborhoodalong the Detroit River, which is the InternationalBoundary, is one of the most active centers for intro-ducing illegally into this country spirituous liquors fordistribution into the interior. It is obvious from the evi-dence that the prohibition agents were engaged in a regu-lar patrol along the important highways from Detroit toGrand Rapids to stop and seize liquor carried in auto-mobiles. They knew or had convincing evidence to makethem believe that the Carroll boys, as they called them,were so-called "bootleggers" in Grand Rapids, i. e., thatthey were engaged in plying the unlawful trade of sellingsuch liquor in that city. The officers had soon after notedtheir going from Grand Rapids half way to Detroit andattempted to follow them to that city to see where theywent, but they escaped observation. Two months laterthese officers suddenly met the same men on their waywestward presumably from Detroit. The partners in theoriginal combination to sell liquor in Grand Rapids weretogether in the same automobile they had been in thenight when they tried to furnish the whisky to the officerswhich was thus identified as part of the firm equipment.They were coming from the direction of the great sourceof supply for their 'stock to Grand Rapids where theypliea their trade. That the officers when they saw thedefendants believed that they were carrying liquor we canhave no doubt, and we think it is equally clear that theyhad reasonable cause for thinking so. Emphasis is putby defendants' counsel on the statement made by one ofthe officers that they were not looking for defendants atthe particular time when they appeared. We do not per-ceive that it has any weight. As soon as they did appear,


132 Opinion of the Court:

the officers were entitled to use their reasoning facultiesupon all the facts of which they had previous knowledgein respect to the defendants.

The necessity for probable cause in justifying seizureson land or sea, in making arrests without warrant for pastfelonies, and in malicious prosecution and false imprison-ment cases has led to frequent definition of the phrase.In Stacey v. Emery, 97 U. S. 642, 645, a suit for damagesfor seizure by a collector, this Court defined probablecause as follows:.

"If the facts and circumstances before the officer aresuch as to warrant a man of prudence and caution in be-lieving that the offense has been committed, it is sufficient."Locke v. United States, 7 Cranch, 339; The George,1 Mason, 24; The Thompson, 3 Wall. 155. It was laiddown by Chief Justice Shaw, in Commonwealth v. Carey,12 Cush. 246, 251 that "if a constable or other peaceofficer arrest a person without a warrant, he is not boundto show in his justification a fefony actually committed,to render the arrest lawful; but if he suspects one on hisown knowledge of facts, or on facts communicated to himby others, and thereupon he has reasonable ground tobelieve that the accused has been guilty of felony, thearrest is not unlawful." Commonwealth v. Phelps, 209Mass. 396; Rohan v. Sawin, 5 Cush. 281, 285. InMcCarthy v. De Armit, 99 Pa. St. 63, the Supreme Courtof Pennsylvania sums up the definition of probable causein this way (page 69):

"The substance of all the definitions is a reasonableground for belief in guilt."

In the case of the Director General v. Kastenbaum,263 U. S. 25, which was a suit for false imprisonment, itwas said by this Court (page 28):

"But, as we have seen, good faith is not enough toconstitute probable cause. That faith must be groundedon facts within knowledge of the Director General's agent,



which iii the judgment of the court would make his faithreasonable." See also Munn v. De Nemours, 3 Wash.C. C. 37.

In the light of these authorities, and what is-shownby this record, it is clear the officers here had justificationfor the search and seizure. This is to say that the factsand circumstances within their knowledge and of whichthey had reasonably trustworthy information were suffi-cient in themselVes to warrant a man of reasonable cau-tion in the belief that intoxicating liquor was being trans-ported in the automobile which they stopped andsearched.

Counsel finally argue that the defendants should bepermitted to escape the effect of the conviction becausethe court refused on motion to deliver them the liquorwhen, as they say, the evidence adduced on the motionwas much less than that shown on the trial, and did notshow probable cause. The record does not make it clearwhat evidence was produced in support of or against themotion., But, apart from this, we think the point iswithout. substance here. If the evidence given on thetrial was sufficient, as we think it was, to sustain .theintroduction of the liquor as evidence, it is immaterialthat there was an inadequacy of-evidence when applica-tion was made for its return. A conviction on adequateand admissible evidence should not be set aside on sucha ground. The whole matter was gone into at the trial,so no right of the defendants was infringed.

Counsel for the Government contend that. Kfro, thedefendant who did not -own the automobile, could -not-complain of the violation of the Fourth -Amendment inthe use of the liquor as evidence agaiust hima_, whateverthe view taken as to Carroll's rights. Our conclusion asto the whole case makes it unnecessary for us to discussthis aspect of it.

The judgment isAffirmed.


132 McREYxoIPs and SUTHERL ND, J. J., dissenting.

MR. JusTcIC MCKENNA, before his retirement, con-curred in this opinion.

The separate opinion of MR. JUSTICE MCREYNODSconcurred in by MR. JUSTICE SUTHERLAND.

1. The damnable character of the "bootlegger's" busi-ness should not close our eyes to the mischief which willsurely follow any attempt to destroy it by unwarrantedmethods. " To press forward to a great principle bybreaking through every other great principle that standsin the way of its establishment; ... in short, to procurean eminent good by means that are unlawful, is as littleconsonant to private morality as to public justice." SirWilliam Scott, The Louis, 2 Dodson 210, 257.

While quietly driving an ordinary automobile along amuch frequented public road, plaintiffs in error were ar-rested by Federal officers without a warrant and uponmere suspicion-ill founded, as I think. The officers thensearched the machine and discovered carefully- secretedwhisky, which was seized and thereafter used as evi-dence against plaintiffs in error when on trial for trans-porting intoxicating liquor contrary to the Volstead Act(c. 85, 41 Stat. 305). They maintain that both arrest andseizure were unlawful and that use of the liquor as evi-dence violated their constitutional rights.

This is not a proceeding to forfeit seized go3ds; nor isit an action against the seizing officer for a tort. Caseslike the following are not controlling: CroweIl v. M'Fadon,8 Cranch 94, 98; United States v. 1960 Bags of Coffee, 8Cranch 398, 403, 405; Otis v. Watkins, 9 Cranch 339;Gelstom v. Hoyt, 3 Wheat. 246, 310, 318; Wood v. UnitedStates, 16 Pet. 342; Taylor v. United States, 3 How. 197,205. They turned upon express provisions of applicableActs of Congress; they did not involve the point nowpresented and afford little, if any, assistance toward itsproper solution. The Volstead Act does not, in terms,authorize arrest or seizure upon mere suspicion.


MEEY-NOLDS and SUTHERLAND, J. J., dissenting. 267 U. S.

Whether the officers are shielded from prosecution oraction by Rev. Stat. Sec. 970 is not important. That -

section does not undertake to deprive the citizen of anyconstitutional right or to permit the use of evidence un-lawfully obtained. It does, however, indicate the clearunderstanding of Congress that probable cause is notalways enough to justify a seizure.

Nor are we now concerned with the question whether byapt words Congress might have authorized the arrestwithout a warrant. It has not attempted to do this.On the contrary, the whole history of the legislationindicates a fixed purpose not so to do. First and secondviolations are declared to be misdemeanors-nothingmore-and Congress, of course, understood the rule con-cerning arrests for such offenses. Whether different pen-alties should have been prescribed or other provisionsadded is not for us to inquire; nor do difficulties attend-ing enforcement give us power to supplement the legisla-tion.

2. As the Volstead Act contains no definite grant ofauthority to arrest upon suspicion and without warrantfor a first offense, we come to inquire whether such au-thority can be inferred from its provisions.

Unless the statute which creates a misdemeanor con-tains some clear provision to the contrary, suspicion thatit is being violated will not justify an arrest. Criminalstatutes must be strictly construed and applied, in har-mony with rules of the common law. United States v.Harris, 177 U. S. 305, 310. And the well settled doctrineis that an arrest for a misdemeanor may not be madewithout a warrant unless the offense is committed in theofficer's presence.

Kurtz v. Moffitt, 115 U. S. 487, 498--" By the commonlaw of England, neither a civil officer nor a private citizenhad the right without a warrant to make an arrest for acrime not committed in his presence except in the case


132 McRYNoLDs and SuTHERLAND, J. 3., dissenting.

of felony, and then only for the purpose of bringing theoffender before a civil magistrate."

Elk v. United States, 177 U. S. 529, 534-"An officer,at common law, was not authorized to make an arrestwithout a warrant, for a mere misdemeanor not commit-ted in his presence."

Commonwealth v. Wright, 15S Mass. 149, 158-1." It issuggested that the statutory misdemeanor of having inone's possession short lobsters with intent to sell them isa continuing offence, which is being committed while such'possession continues, and that therefore an officer whosees any person in possesssion of such lobsters with intentto sell them can arrest such person without a warrant, asfor a misdemeanor committed in his presence. We are ofopinion, however, that for statutory misdemeanors of thiskind, not amounting to a, breach of the peace, there isno authority in an officer to arrest without a warrant,unless it is given by statute. . . . The Legislaturehas often empowered officers to arrest without warrantfor similar offenses, which perhaps tends to show that,in its opinion, no such right exists at common law."

Pinkerton v. Verberg, 78 Mich. 573, 584--" Any lawwhich would place the keeping and safe conduct of an-other in the hands of even a conservator of the peace,unless for some breach of the peace committed in hispresence, or upon suspicion of felony, would be mostoppressive and unjust, and destroy all the rights whichour Constitution guarantees. These are rights which ex-isted long before our Constitution, and we have taken justpride in their maintenance, making them a part of thefundamental law of the land. . . . If persons can berestrained of their liberty, and assaulted and imprisoned,under such circumstances, without complaint or warrant,then there is no limit to the power of a police officer."

3. The Volstead Act contains no provision which annulsthe accepted common law rule or discloses definite intent

OCTOBER TERM, 1924.

McREYNOLDs and SUTHERLAND, J. J., dissenting. 267 U. S.

to authorize arrests without warrant for misdemeanorsnot committed in the officer's presence.

To support the contrary view Section 26 is reliedupon-

"When... any officer of the law shall discoverany person in the act of transporting in violation of thelaw, intoxicating liquors in any wagon, buggy, automo-bile,, water or air craft, or other vehicle, it shall be hisduty to seize any and all intoxicating liquors foundtherein being transported contrary to law. Wheneverintoxicating liquors transported or possessed illegally shallbe seized by an officer he shall take possession of the ve-hicle and team or automobile, boat, air or water craft,or any other conveyance, and shall arrest any person incharge thereof."

Let it be observed that this section has no special appli-cation to automobiles; it includes any vehicle-buggy,wagon, boat -or air craft. Certainly, in a criminal 9tatute,always to be strictly construed, the words "shall dis-cover .. in the act of transporting in violation ofthe law" cannot mean, shall have reasonable cause tosuspect or believe that such transportation is being car-ried on. To discover and to suspect are wholly different.things. Since the beginning apt words have been usedwhen Congress intended that arrests for misdemeanorsor seizures might be made upon suspicion. It hasstudiously refrained from making a felony of the offensehere charged; and it did not undertake by any apt wordsto enlarge the power to arrest. It was not ignorant ofthe established rule on the subject, and well understoodhow this could be abrogated, as plainly appears fromstatutes like the following: " An Act to regulate the col-lection of duties on imports and tonnage," approvedMarch 2, 1789, c. 22, 1 Stat. 627, 677, 678; " An Act toprovide more effectually for the collection of the dutiesimposed by law on goods, waires and merchandise im-


132 MCREY2iOLDS and SUTHERLAND, J. J., dissenting.

ported into the United States, and on the tonnage of shipsor vessels," approved August 4, "1790, c. 35, 1 Stat. 145,170; "An Act further to provide for the collection ofduties on imports and tonnage," approved March 3, 1815,c. 94, 3 Stat. 231, 232. These and similar Acts definitelyempowered officers to seize upon suspicion and thereinradically differ from the Volstead Act, which authorizedno such thiifg.

"An Act supplemental to the National ProhibitionAct," approved November 23, 1921, c. 134, 42 Stat. 222,223. provides-

" That any officer, agent, or employee of the UnitedStates engaged in the enforcement of this Act, or theNational Prohibition Act, or any other law of the UnitedStates, who shall search any private dwelling as definedin the National Prohibition- Act, and occupied as suchdwelling, without a warrant directing such search, or whowhile so engaged shall without a search warrant mali-ciously and without reasonable cause search any otherbuilding or property, shall be guilty of a misdemeanorand upon conviction thereof shall be fined for a firstoffense not more than $1,000, and for b subsequent offensenot more than $1,000 or imprisoned not more thap oneyear, or both such fine and imprisonment."

And it is argued that the words and history of thissection indicate the intent of Congress to distinguish be-tween the necessity for warrants in order to search pri-vate dwellings and the right to search automobiles w.ithoutone. Evidently Congress regarded the searching of pri-vate dwellings as matter of much graver consequence thansome other searches and distinguished between them bydeclaring the former criminal. But the connection be-tween this distinction and the legality of plaintiffs iperror's arrest is not apparent. Nor can I find reason forinquiring concerning the validity of the distinction underthe Fourth Amendment. Of course, the distinction is

OCTOBER TERM, 1924.

MCREYNOLDS and SUTHERLAND, J. J., dissenting. 267 T. S.

valid, and so are some seizures. But what of it? TheAct made nothing legal which theretofore was unlawful,and to conclude that by declaring the unauthorized searchof a private dwelling criminal. Congress intended to re-move ancient restrictions from other searches and fromarrests as well, would seem impossible.

While the Fourth Amendment denounces only unrea-sonable seizures, unreasonableness often depends upon themeans adopted. Here the seizure followed an unlawfularrest, and therefore became itself unlawful-as plainlyunlawful as the seizure within the home so vigorouslydenounced in Weeks v. United States, 232 U. S. 383, 391,392, 393.

In Snyder v. United States, 285 Fed. 1, 2, the Court ofAppeals, Fourth Circuiti rejected evidence obtained by anunwarranted arrest, and clearly announced some verywholesome doctrine : "' That an officer may not make anarrest for a misdemeanor not committed in his presence,without a warrant, has been so frequently decided as notto require citation of authority. It is equally funda-mental that a citizen may not be arrested on suspicionof having committed a misdemeanor and have his personsearched by force, without a warrant of arrest. If, there-fore, the arresting officer in this case had no other justifica-tion for the arrest than the mere suspicion that a bottle,only the neck of which he could see protruding from thepocket of defendant's coat, contained intoxicating liquor,then it would seem to follow without much question thatthe arrest and search, without first having secured a war-rant, were. illegal. And that his 6nly justification was hissuspicion is admitted by the evidence of the arrestingofficer himself. If the bottle had been empty or if it hadqontained any one of a dozen innoxious liquids, the act ofthe officer would, admittedly, have been an unlawful in-vasion of the personal liberty of the defendant. That ithappened in this instance to contain whisky, we think,

168'


132 McRE NoIs and SuTHERLAND, J. J., dissenting.

neither justifies the assault hor condemns the principle'which makes such an act unlawful."

The validity of the seizure under consideration dependson the legality of the arrest. This did not follow theseizure, but the reverse is -true. Plaintiffs in error werefirst brought within the officers' power, and; while therein,.the seizure took place. If an officer, upon mere suspicionof a misdemeanor, may stop onp on the public highway,take articles away from him and thereafter ise them asevidence to convict him of crime, 'what becomes of theFourth and Fifth Amendments?

In Weeks v. United States, supra, through Mr. JusticeDay, this court said: "The effect of the Fourth. Amend-rnent is to put the courts of the Unitedi States and Fed-eral officials, in the exercise of their poWer and authority,under limitations and restraints asi to the exercise of suchpower and authority, and to forover secure the, people,their persons, houses, papers and effects dgainst all un-reasonable searches and seizures funder the guise of law.This protection reaches all alike, hhther accused of crimeor not, and the duty of giving tcy it force and effect isobligatory upon all entrusted i;"-&aer our Federal systemwith the enforcement of the laws. 'The tendency of thosewho execute the criminal laws of the country to obtainconviction by means of unlawful seizures and enforcedconfessions, the latter often obtained after subjectingaccused persons to unwarranted practices destructive ofrights secured by the Federal Constitution, should find nosanction in the judgments of the courts which are chargedat all times with the support of the Constitution andto which people of all conditions have A right to appealfor the maintenance of such fundamental rights..-..The efforts of the courts and their officials to bringthe guilty to punishment, praiseworthy as they are, arenot t'o be aided by the sacrifice of th'ose great principlesestablished by years of endeavor and suffering which have


McRzyNOLDS and SU'THERLAND, J. J., dissenting. 267 U. S.

resulted -in their embodiment in the fundamental law ofthe land."

Silverthorne Lumber Co. -v. United States, 251 U. S.385, 391: "The proposition could not be presented morenakedly. It is that although of course its seizure was anoutrage which the Government now regrets, it may studythe papers before it returns them, copy them, and thenmay use the knowledge that it has gained to call uponthe owners in a more regular form to produce them; thatthe protection of the Constitution covers the physicalpossession but not any advantages that the Governmentcan gain over the object of its pursuit by doing the for-bidden act. Weeks v. United States, 232 U. S. 383, to besure, had established that laying the papers directly beforethe grand jury was unwarranted, but it is taken to meanonly that two steps are required instead of one. In ouropinion such is not the law. It reduces the FourthAmendment to a form of words. 232 U. S. 393. The es-sence of w provision forbidding the acquisition of evidencein a certain way is that not merely evidence so acquiredshall not be used before the court but that it shall not beused at all. Of course this does not mean that the factsthus obtained become sacred and inaccessible. If knowl-edge of them is gained from an independent source theymay be proved like any others, but the knowledge gainedby the Government's own wrong cannot be used by it inthe way proposed."

Gouled v. United States, 255 U. S. 298, and Amos v.United States, 255 U. S. 313, distinctly point out thatproperty procured by unlawful action of Federal officerscannot be introduced as evidence.

The arrest of plaintiffs in error was unauthorized, illegaland violated the guarantee of due process given by theFifth Amendment. The liquor offered in evidence wasobtained by the search which followed this arrest andwas therefore obtained in violation of their constitu'tional


132 McRLNoDs and SuTHERLAND, J. J., dissenting.

rights. Articles found upon or in the control of onelawfully arrested may be used as evidence for certain pur-poses, but not at all when secured by the unlawful actionof a Federal officer.

4. The facts known by the officers who arrested plain-tiffs in error were wholly insufficient to create a reason-able belief that they were transporting liquor contrary tolaw. These facts were detailed by Fred Cronenwelt, chiefprohibition officer. His entire testimony as given at thetrial follows--

"I am in charge of the Federal Prohibition Departmentin this District. I am acquainted with these two re-spondents, and first saw them on September 29, 1921, inMr. Scully's apartment on Oakes Street, Grand Rapids.There were three of them that came to Mr. Scully's apart-ment, one by the name of Kruska, George. Kiro and JohnCarroll. I was introduced to them under the name ofStafford, and told them I was ivorking for the MichiganChair Company, and wanted to buy three cases of whisky,and the price was agreed upon. After they thought Iwas all right, they said they would' be back in half orthree-quarters of an hour; that they had to go out to theeast end of. Grand Rapids, to get this liquor. They wentaway and came back in a short time, and Mr. Kruskacame upstairs and said-they couldn't get it that night;.that a fellow by the name of Irving, where they weregoing to get it, wasn't in, but they were going to deliverit the next day, about ten. They didn't deliver it thenext day. I am not positive about the price. It seemsto me it was around $130 a case. It might be $135.Both respondents took part in this conversation. Whenthey came to Mr. Scully's apartment they had this samecar. While it was dark and I wasn't able to get a goodlook at this car, later, on the sixth day of October, whenI was out on the road with Mr. Scully, I was waiting onthe highway while he went to Reed's Lake to get a light

OCTOBER TERM, 1924.

MCREYNOLDS and Su'rlEIANxD, J. J., dissenting. 267 U.S.

lunch, and they drove by, and I had their license numberand the appearance of their car, and knowing the twoboys, seeing them on the 29th day of September, I wassatisfied when I seen the car on December 15th it wasthe same car I had seen on the 6th day of October. Onthe 6th day of October it was probably twenty minutesbefore Scully got back to where I was. I told him theCarroll boys had just gone toward Detroit and we weretrying to 6atch up with them and see where they weregoing. We did catch up with them somewhere along byAda, just before we got to Ada, and followed them to EastLansing. We gave up the chase at East Lansing.

"On the 15th of December, when Peterson and Scullyand I overhauled this car on the road, it was in the coun-try, on Pike 16, the ioad leading between Grand Rapidsand Detroit. When we passed the car we were goingtoward Ionia, or Detroit, and the Kiro and Carroll boyswere coming towards Grand Rapids when Mr. Scully andI recognized them and said 'there goes the Carrollbrothers,' and we went on still further in the same direc-tion we weregoing and turned around and went back tothem; drove up to the side of them. Mr. Scully wasdriving the car; I was sitting in the front seat, and Istepped out on the running board and held out my handaad said, 'Carroll, stop that car,' and they did stop, it.John Kiro was driving the car. After we got themstopped, we asked them to get out of the car, which theydid. Carroll referred to me and called M~e by the name of'Fred' just as soon as I got up to him. Raised up theback part of the roadster; didn't find any liquor there;then raised up the cushion; then I struck at the lazybackof the seat and it was hard. I then started to open it up,and I did tear the cushion some, and Carroll said, 'Don'ttear the cushion; we have only got six cases in there; 'and I took out two bottles and found out it was liquor;satisfied it was liquor. Mr. Peterson and a fellow by the

172


132 McRmYaOLs and SUTHERLAND, J. J., dissenting.

name of Gerald Donker came in with the two Carrollboys and the liquor and the car to Grand Rapids. Theybrought the two defendants and the car and the liquorto Grand Rapids. I and the other men besides Petersonstayed out on the road, looking for other cars that wehad information were coming in. There was conversa-tion between me and Carroll before Peterson started fortown with the defendants. Mr. Carroll said, 'Take theliquor and give' us one more chance and I wl make itright with you.' At the same time he reached in one ofhis trousers pockets and pulled out money; the amountof it I don't know. I wouldn't say it was a whole lot.I saw a ten dollar bill afid there was some other bills;I don!t know how much there was; it wasn't a largeamount.

"As I understand, Mr. Hanley helped carryt the liquorfrom the car. On the next day afterwards, we put thisliquor in boxes, steel boxes, and left it in the Marshal'svault, and it is still there now. Mr. Hanley and Chief

*Deputy Johnson, -some of the agen~ts and myself werethere. Mr. Peterson was there the next day that thelabels were signed by the different officers; those two bot-tles, Exhibits 'A' and' B.'

"Q. Now, those two bottles, Exhibits 'A' and' B,' werethose the two bottles you took out of the car out there, orwere those two bottles taken out of the liauor after itgo up here?

"A. We didn't label them out on the road; simply foundit was liquor and sent it in; and this liquor was in Mr.Hanley's custody that evening and during the middle ofthe next day when we checked it over to see the amount ofliquor that was there. Mr. Johnson and I sealed the bot-tles and Mr. Johnson's name is on the label that goes overthe box with mine, and this liquor was taken out of thecase today. It was taken out for the purpose of analyza-tion. The others were not broken- until today.


MCREYNOLDS and SUTHERLAND, J. J., dissenting. 267 U. S.

"Q. And are you able to teli us, from the label andfrom the.bottles, whether it is part of the same liquortaken out of that car? A. It has the appearance of it,yes sir. Those are the bottles that were in there that Mr.Hanley said was gotten out of the Carroll car." [Cross-examination.] I think I was the first one to

get back to the Carroll car after it was stopped. I had agun in my pocket; I didn't present it. I was the firstone to the car and raised up the back of the car, but theothers were there shortly afterward. We assembled rightaround the car immediately."Q. And whatever examination and what investigation

you made you went right ahead and did it in your ownway? A. Yes, sir.

"Q. And took possession of it, arrested them, andbrought them in? A. Yes, sir.

"Q. And at that time, of course, you had no searchwarrant? A. No, sir. We had no knowledge that thiscar was coming through at that particular time." [Redirect examination.] The lazyback was awfully

hard when I struck it with my fist.. It was harder thanupholstery ordinarily is in those backs; a great dealharder. It was practically solid. Sixty-nine quarts ofwhiskey in one lazyback."'

The negotiation concerning three cases of whisky onSeptember 29th was the only circumstance which couldhave subjected plaintiffs in error to any reasonable sus-picion. No whisky was delivered, and it is not certainthat they ever intended to deliver any. The arrest cametwo and a half months after the negotiation. Every actin the meantime is consistent with complete innocence.Has it come about that merely because a man once agreedto dgliver whisky, but did not, he may be arrested when-ever thereafter he ventures to drive an automobile on theroad to Detroit!

5. When Congress.has intended that seizures or arrestsmight be made upon suspicion it has been careful to say

WORK v. RIVES.

132 Syllabus.

so. The history and terms of the Volstead Act are notconsistent with the suggestion that it was the purpose ofCongress to'grant the power here claimed for enforcementofficers. The facts known when the -rrest occurred werewholly insufficient to engender reasonable belief that

,plaintiffs in error were -committing a misdemeanor, andthe legality of the arrest cannot be supported by factsascertained through the search Which followed..

To me it seems clear enough that the judgment shouldbe reversed.

I am. authorized to say that MR. JUSTICE SUTHERLAND

concurs in this opinion. -

WORK, SECRETARY OF THE INTERIOR v.UNITED STATES EX REL. RIVgS.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 272. Argued November 25, 26, 1924.-Decided March 2, 1925.

1. Where the duties imposed upon an executive officer by a statutegranting gratuities based on equitable and moral considerationsinclude the duty of construing the statute itself in its execution,his construction of it is a discretionary act which can not bce con-trolled by the writ of mandamus. P. 177.

2. Under § 5 of the. Dent Act, March 2, 1919, c. 94, 40 Stat. 1272,refusal by the Secretary of the Interior to allow a claim for moneyspent to obtain a release from a contract to buy manganese land,the refusal being based upon the view that expenditures for realestate or mining rights were'not "for or upon" property, but,were speculative, within the meaning of the act-was conclusiveagainst the' claimant. P. 178.

3. The amendment of November 23, 1921, c. 137, 42 Stat. 322, didnot change -the act in this regard. P. 182.

4. This case, upon the facts admitted by the demurrer to the answer,is not within the class allowing mandamus to compel an officerto take actifn and-exercise his discretionj or an inferior tribunalto take jurisdiction." P. 184.

54 App. D'C.-84, 295. Fed. 225 reversed.

132 october term, 1924. - library of congress

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